N.J Supreme Court says courts should collect jury demographic data

New Jersey’s top court ruled Monday a convicted attempted arsonist failed to prove the trial court’s primarily virtual, hybrid jury-selection process deprived him of a jury representative of his diverse community.

The case represents one of the first challenges to whether a defendant can get a fair trial when the pandemic has pushed so much of the judicial process online.

Still, Justice Lee A. Solomon said the concerns raised by the defendant, Wildemar A. Dangcil, were important enough that he ordered all courts in New Jersey to begin collecting demographic data to prevent potential underrepresentation among jury panels.

Such demographic disclosures were something both the American Civil Liberties Union of New Jersey and the New Jersey Office of the Public Defender had called for in a joint appellate brief they filed in the case.

“Disclosure should be voluntary and cover a juror’s racial identity, ethnicity, and gender categories. ‘Perfection may not be attainable but its pursuit should be relentless,’” Solomon wrote, quoting a 1985 ruling in an unrelated jury selection case.

Monday’s ruling stemmed from a 2019 attempted arson, in which Dangcil was convicted of pouring gasoline around his ex-wife’s home and car in Hackensack (he left the scene before setting the fire). Dangcil’s case was scheduled to go to trial in April 2020, but the court system suspended all proceedings in March 2020 after the COVID-19 outbreak. When jury trials resumed last fall, Dangcil’s was the first to proceed in Bergen County.

For his case, the court summoned 800 jurors, but about 600 failed to respond, proved they did not qualify, or were excused, leaving about 200 potential jurors, according to Solomon’s ruling.

A Sixth Amendment debate

Dangcil’s attorneys questioned whether a jury pool can represent the true diversity of a community when the court screens jurors remotely,  and can’t see and don’t ask about their ethnicity, race, or other demographic traits. That becomes a bigger concern, they argued, when one considers the pandemic’s disproportionate impact on people of color and women, which could strip a jury pool of people in those demographics.

His lawyer also suggested the process violated the Sixth Amendment, which enshrines a defendant’s right to face — in-person — the jurors who will judge him.

In an amicus brief, the New Jersey State Bar Association (NJSBA) echoed such concerns, writing: “Trials can be won or lost in the jury selection process — particularly criminal trials, in which the defendant need sway only a single juror to avoid a guilty verdict.”

But Solomon affirmed trial and appellate courts in rejecting Dangcil’s arguments, saying the system’s initial screening to disqualify or excuse jurors was largely the same during the pandemic as it was before the pandemic. And Dangcil’s attorneys didn’t demonstrate an actual lack of representation, Solomon said.

The Sixth Amendment applies only during “critical stages” of the jury selection process, and the disqualifying, deferring and excusing of jurors that occurs before voir dire is not a critical stage when defendants and their attorneys must be present, Solomon added.

Dangcil was sentenced to 18 years in prison. Attorney Brian Neary,  who represented him in his appeal, said while Monday’s ruling didn’t help Dangcil, it will benefit cases going forward.

“Today’s decision in Mr. Dangcil’s challenge to the COVID jury selection shows that demographics like race and gender do matter to ensure a fair cross-section of jurors,” Neary said.

Attorney Laurence Lustberg, who filed the NJSBA’s brief, also applauded Solomon’s decree that courts collect jurors’ demographic details.

“The New Jersey State Bar Association believes in the foundational constitutional right to a fair and impartial jury, with a process that allows for a jury pool drawn from a fair cross-section of the community,” he said. “Especially with the challenges presented by the public health pandemic, the NJSBA believes increased transparency in the selection process is critical to ensuring that these rights are fully protected.”

Nearly 40 criminal jury trials have started and “some” civil jury trials have been completed since the court returned to hybrid proceedings June 15, and about 100 virtual civil jury trials have been completed in 2021, courts spokeswoman MaryAnn Spoto said.