IT NICE AND LOUD IF THAT'S ALL RIGHT SO THAT WE CAN GO THROUGH THE LIST AND
HOPEFULLY BE ABLE TO HERE IT, STARTING WITH MR. NEARY. MR.
NEARY: BRIAN NEARY, I REPRESENT THE DEFENDANT A PEL LANTD K-WILDEMAR DANGCIL.
MR. KRAKORA: THANK YOU YOUR HONOR, JOE KRAKORA, PUBLIC DEFENDER
FOR THE STATE OF NEW JERSEY ON BEHALF OF THE PUBLIC DEFENDER'S OFF AND THE ACLU.
MR. LUSTBERG: LAWRENCE LUST BER, ON BEHALF OF AMICUS NEW
JERSEY STATE BAR ASSOCIATION. MS. KINGMAN: MA RIS RA KING PLAN
ON BEHALF OF THE. MS. CHASMER: JAMEY M CHASMER, ASSISTANT
PROSECUTOR FOR THE STATE OF NEW JERSEY. MS. CHASMER: LILA
B HERND. MS. SHASHOUA: COUNTY PROSECUTOR APPEARING AS A
FRIEND OF THE COURT, APPEARING ON THE COUNTY PROSECUTORS ASSOCIATION OF NEW JERSEY.
THE COURT: THANK YOU. THE COURT GRANTED CERTIFICATION LIMITED
TO THE FOLLOWING, DEFENDANT'S XHAL LENG TO THE HYBRID VIRTUAL IN PERSON JURY SELECTION
PROCEDURE, THAT'S THE ONLY ISSUE IN FRONT OF THE COURT FOR ARGUMENT TODAY,
I KNOW THAT AMICI HAVE ADDED CERTAIN ISSUES, WE HAVE YOUR BRIEFS WITH RESPECT TO
POTENTIAL QUESTION ABOUT A CONFLICT, WITH RESPECT TO REPRESENTATION OF THE
AOC, COLLECTION OF DID HE MEAN GRAVENG DATA AND CERTAIN OTHER MATTERS, WE HAVE
YOUR SUBMISSIONS ON THAT, WE WILL CONSIDER THEM, WE DO NOT NEED ARGUMENT
ON THOSE AND I ASK YOU TO REST ON YOUR PAPERS WITH RESPECT TO THAT AND I'M ASKING
EVERYONE, AND I REALIZE THIS WILL TRIM THE ARGUMENTS, TO FOCUS ON THE HYBRID
VIRTUAL JURY SELECTION PROCESS IN THIS CASE, I ALSO ASK AMICI IN VIEW OF THE NUMBER
OF FINE ADVOCATES WE HAVE TODAY, TO BE PREPARED TO LIMIT THEIR ARGUMENTS TO
FIVE TO TEN MINUTES, WE WILL START WITH MR. NEARY, PLEASE STEP FORWARD.
MR. NEARY: THANK YOU CHIEF JUSTICE, CHIEF JUSTICE, TWO QUESTIONS, THE
PROTOCOL WITH REGARD TO MASKS. THE COURT: YOU MAY REMOVE
IT. MR. NEARY: THANK YOU. MAY I RESERVE TWO MINUTES FOR
REBUTTAL. THE COURT: YOU MAY. MR. NEARY: THANK
YOU CHIEF. I REPRESENT WILDEMAR DANGCIL, HE WAS THE FIRST DEFENDANT CHARGED AND
TRIED IN ONE OF THE MOST DRAMATIC JURY CASES IN THE JURISPRUDENCE OF THIS
CASE, HIS TRIAL WAS A HYBRID JURY TRIAL WITH THE SELECTION PROCESS DONE FOR THE
MIRACLES OF ZOOM. THIS ARGUMENT IS NOT ABOUT WHETHER TECHNOLOGIST WORKS,
WE ALL AGREE THAT TECHNOLOGY WORKS IN THIS SYSTEM, TECHNOLOGY HAS BEEN A GREAT
AID TO ALLOW THE COURT SYSTEMS AND THIS STATE TO CONTINUE ITS PURSUIT OF
JUSTICE ON BEHALF OF ALL. IT IS NOT AN ARGUMENT WITH REGARD TO WHETHER OR NOT
THE EFFICACY OF QUESTIONING VIA ZOOM IS APPROPRIATE, THAT'S NOT THE ISSUE. THE
ISSUE PRESENTED TODAY IS THE ISSUE AS TO WHETHER OR NOT THAT IN THE COMPILING
AND BRINGING TOGETHER OF MEN WITH REGARD TO THIS WITH CERTAIN CONSTITUTIONAL
VIOLATIONS WAS THE RIGHT TO PRESENCE OF THE DEFENDANT NOT ABIDED BY, WAS
THE RIGHT TO HAVE COUNSEL PARTICIPATE NOT ABIDED BY, AND THE THIRD IS WHETHER OR NOT
WE CAN TELL WHETHER OR NOT THERE'S A FAIR CROSS-SECTION OF THE COMMUNITIES THAT
WAS INVITED TO PARTICIPATE. THE PROCEDURAL HISTORY HAS TO BE WOVEN ALONG WITH NOT
ONLY MR. DANGCIL'S CASE BUT THE EFFORTS BY THE COURT AND BY THE ADMINISTRATIVE
OFFICE OF THE COURT TO GET THIS PROCEDURE TOGETHER, IT WAS THE PRODUCT OF
WORKING GROUPS, IT WAS THE PRODUCT OF ORDERS, IT WAS PRODUCT OF PLANS, AND I THINK
THE EXAMINATION OF EACH AND EVERYONE OF THOSE WILL READ US, LEAD US TO THE
POSITION OF HOW THIS WAS DONE AND WHAT MAY HAVE BEEN FLAWED. REMEMBER, THESE ARE
-- THIS WAS THE FIRST TIME THAT THESE WERE EVER DONE. THIS WAS THE MAIDEN
VOICH OF A DANGEROUS -- LET ME NOT SAY DANGEROUS, OF AN AD VENTURE THAT WE ALL
INVITE TO COMPLISHL. I THINK WE HAVE TO FOCUS ON THE PLAN, I THINK WE HAVE TO
FOCUS FOR THE MOMENT AT LEAST ON THE ORDERS. THERE WAS A PRE SCREENING
PLAN THAT WAS DEVISED BY ORDER AS WELL AS BY A PLAN THAT WAS PROMULGATED PROMINENTLY,
WE ALL HAVE SEENG IT, IT'S A PARTER OF MY APPENDIX WITH REGARD TO HOW THIS
WAS DONE AND I FOCUS ON THE SO-CALLED PRE SCREENING. NOW,
IT'S IMPORTANT TO NOTE THAT NUMBERS MATTER, DANGCIL IS NUMBER 1 WITH REGARD TO
IT, DANGCIL FACED 5 SERIOUS COUNTS, INCLUDING ATTEMPTED MURDER, BUT THE
REAL NUMBERS CAME WITH REGARD TO AN ORDER TO SHOW CAUSE THAT WAS FILED, A SELECTION
OF JURORS AND FINALLY AN ARGUMENT BEFORE THE TRIAL COUNSEL WITH REGARD TO THE
ORDER TO SHOW CAUSE WHERE FOR THE FIRST TIME REALLY NUMBERS ABOUT WHAT
HAPPENED WERE REVEALED, FIRST IN A CERTIFICATION BY BRIAN MCLAUGHLIN, WHO IS THE
STATE WIDE JURY MANAGER, ALSO BY LOURDES FIGUEROA WHO IS THE BERGEN COUNTY
MANAGER, AND I ONLY MENTION THESE BECAUSE I THINK IT'S IMPORTANT TO LOOK AT THESE
AND TO JUXTAPOSE WITH REGARD TO THE STATUTE AS WELL AS THE COURT RULE WITH HOW
WE PRE SCREEN JURORS. NOW, IT WAS BRIAN NEARY SUGGEST BRIAN
MCLAUGHLIN SUGGESTED THAT HIS CERTIFICATION THAT THIS WAS ALWAYS THE WAY
THAT WE DID IT, I WOULD DISAGREE, THIS IS THE FIRST TIME THAT WE HAD THE UNIVERSE
KAL CONCERN OF THE PANDEMIC, UNIVERSAL THAT ALL THAT WE HAD FOCUSSED WHO
IN TERMS OF THIS CASE, IN TERMS OF THAT JURY SELECTION, RAN THROUGH THE PRISM OF
COVID 19, THE PANDEMIC AND THIS COURT'S EFSHTD TO ENSURE PUBLIC SAFETY AS WELL
AS THE ADMINISTRATION OF JUSTICE. NO OTHER TIME HAD A QUESTIONNAIRE EVER BEEN GIVEN
TO A JUROR, CENTS TO PROSPECTIVE JURORS, ON A SINGULAR ISSUE, THEIR REACTION
WITH REGARD TO COVID 19, SO IF MR. MCLAUGHLIN SUGGESTED THAT, I WOULD SUGGEST IT WAS
DIFFERENT. NOW IT'S IMPORTANT AGAIN WITH NUMBERS, BECAUSE 800 JURORS WERE
SUMMONED, 533 WERE ACTUALLY COMPLETED QUESTIONNAIRES, SO THAT WE ALSO HAVE
TO -- AND THERE WERE 3 CATEGORIES OF PEOPLE BEFORE THEY ACTUALLY WENT ON A ZOOM
PLATFORM. NOW, I'M GOING TO HOPE TO MAKE THIS POINT. PRE COVID WE COULD
PUT 150 JURORS IN A ROOM AND ASK THEM A VARYING SERIES OF QUESTIONS, INCLUDING
WHETHER OR NOT THEY HAD VACATION PLANS, WHETHER OR NOT THEY FELT THEY COULD
SERVE, WHETHER OR NOT THEY HAD ECONOMIC DIFFICULTIES, BUT REMEMBER THE
TECHNICAL LIMITATION OF ZOOM, YOU CAN ONLY GET 30 PEOPLE IN A ROOM, 30 IN THE MORNING
AND 30 IN THE AFTERNOON, WE KNOW THAT FROM THE PLAN, SO WE GO THROUGH THAT
AND I THINK WHETHER IT'S ADVERTENT OR INADVERTENT AS WE TALKED ABOUT THE 3
CATEGORIES OF QUALIFICATIONS, WHETHER OR NOT SOMEBODY WAS QUALIFIED, THE
FIVE OR SIX DIFFERENT THINGS, THE AGE, THE RESIDENCY, THE SPEAKING OF ENGLISH,
THOSE CATEGORIES, THOSE ARE EASY, THOSE ARE EASY. THE EXCUSES WHICH ARE MORE
CATALOGUED, WHICH REQUIRE WHO ARE DISCRETION, JUST TAKE A LOOK THE A THEM AND VERY
HONESTLY IF YOU ASK AN EXPERIENCED TRIAL LAWYER THAT THOSE QUESTIONS ARE OFTEN
ASKED BY THE TRIAL JUDGE WHEN THE VENEER SHOWS UP, HOW MANY PEOPLE ARE IN THE
ROOM, IT'S NOT UNUSUAL THAT SOMEONE SAYS I'M GOING TO VACATION NEXT WEEK OR I CAN'T
SIT FOR 4 WEEKS, THE RESPONSE OF THE JUDGE OFTEN CAN BE WELL WE HAVE A SHORTER
TRIAL DOWN THE HALLWAY, CAN YOU SIT FOR THAT JURY, IT WAS NOT SIMPLY, YOU'RE NOT
GOING TO BE AVAILABLE IN X NUMBER OF WEEKS, YOU GET TO GO. AND THEN NIEBL
R FINALLY THE DEFRLS THAT WERE PRIOR TO COVID WERE SELF EXECUTED, I CAN'T BE HERE
FOR 3 WEEKS, PUT IT OFF FOR 3 WEEKS, THREE MONTHS, THAT WAS CHANGED, BECAUSE
NOW A DIRECT QUESTION WAS NOW PUT THROUGH THE CASE MANAGER TO THAT PARTICULAR PERSON,
AND THAT'S THE 3 AREAS WHERE I BELIEVE RESPECTFULLY THAT A TRIAL COURT DID
NOT HAVE THE OPPORTUNITY TO MANAGE THAT, TO REVIEW THAT INFORMATION, AND MORE
IMPORTANTLY, MORE IMPORTANTLY, THAT COUNSEL WOULD NOT HAVE THE OPPORTUNITY TO
WATCH, TO LISTEN, TO SEE WHETHER OR NOT WHETHER THE EXCUSES WERE APPROPRIATE --
JUSTICE LAVECCHIA: MR. NEARY, I TAKE YOUR ARGUMENT THEN,
YOU'RE EXCLUSIVELY FOCUSING ON THE CONSTITUTIONAL RIGHT TO BE PREBTS AND HAVE
REPRESENTATION, THAT'S WHAT ALL OF THESE POINTS ARE ABOUT. CORRECT?
MR. NEARY: RIGHT, WHAT FLOWS FROM THAT JUSTICE I BELIEVE IS THE THIRD
THING WHETHER OR NOT WE'RE ABLE TO DETERMINE WHETHER THERE'S A FAIR
CROSS-SECTION OF THE COMMUNITIES. CHIEF JUSTICE RABNER: STAY WITH
THE FIRST PART THAT THE JUSTICE IS ASKING ABOUT, YOUR ARGUMENT IS THAT THESE
COMPONENTS BECOME A CRITICAL STAGE WHERE A DEFENDANT HAS A CONSTITUTIONAL RIGHT
TO BE PRESENTS. RIGHT. MR. NEARY: ABSOLUTELY, CHIEF.
CHIEF JUSTICE RABNER: SO EXPLAIN WHY IF AN INDIVIDUAL PROSPECTIVE JUROR
HAS A DOCTOR'S NOTE SEEKING AN EXCUSE, THAT IS A CRITICAL STAGE AS OPPOSED TO AN
ADMINISTERIAL ACT. MR. NEARY: WELL, THE DOCTOR'S NOTE WOULD BE
UNIQUE TO THE PARTICULAR INDIVIDUAL, IT'S NOT WHAT I WOULD CALL EMERGENT,
UNLESS -- NOT EMERGENT, IT'S THE KINDS OF THING THAT I THINK BORDERS ON -- IT'S
ADMINISTRATIVE, THAT'S EASY, BUT THE PROBLEM HERE IS EACH OF THE
PROSPECTIVE JURORS HAD TO RUN THROUGH MY WORD THE PRISM OF THEIR REACTION TO THE
PANDEMIC, IF WE DIDN'T HAVE A PANDEMIC WE WOULDN'T EVEN DO THIS.
JUSTICE ALBIN: THIS IS WHAT I'M TRYING TO UNDERSTAND. FORGET ABOUT THE COVID
QUESTIONS, WHAT WAS DIFFERENT IN THE ADMINISTRATIVE SELECTION, THE INITIAL
PRE SCREENING OF THE VENEER, OKAY, DURING THE POST PANDEMIC PERIOD COMPARED TO THE
PRE PANDEMIC, JUST THE PRE SCREENING, OF THE VENEER, I'M NOT TALKING ABOUT THE
JURY SELECTION NOW, BECAUSE IT'S -- THOSE PRE SCREENING QUESTIONS THAT'S
WITHIN KNOWING DOWN THE NUMBERS, YOU KNOW, PEOPLE WHO HAVE MEDICAL CONDITIONS,
THAT PROBT THEM FROM SITTING, SO TELL ME WHAT THE DIFFERENCES WERE.
MR. NEARY: WELL, UNDERSTANDING WHAT THE STATUTE SAYS, AND I KNOW --
JUSTICE FERNANDEZ-VINA: CAN I INTERRUPT YOU FOR A SECOND? YOU SEEM TO INDICATE
THAT IF WEREN'T FOR THE PANDEMIC THE VOR DPEER #24R8D BE NO EXCUSE AVAILABLE TO
THE JURORS ABOUT A DOCTOR'S NOTE OR GOING ON VACATION, DID I UNDERSTAND YOU TO SAY
THAT DIDN'T HAPPEN BEFORE THE PANDEMIC. MR. NEARY: NO, THAT WAS
DONE IN PERSON, THAT WAS DONE WHEN THE JURORS CAME TO THE COURTROOM, I
UNDERSTAND THE STATUTE ALLOWS THAT. JUSTICE ALBIN: START WITH THE
PRE SCREENING, OKAY? THAT'S WHEN EVERYONE IS RESPONDING TO THE SUMMONSES,
TELL US HOW IT WAS DIFFERENT, OTHER THAN THE COVID QUESTIONS, TELL US HOW IT WAS
DIFFERENT. MR. NEARY: THE FACT THAT WHILE THE STATUTE PROVIDED
THAT THE MANAGER COULD, COULD, IT WAS PERMISSIVE, NOT MANDATORY, EXERCISE, THAT
THAT PERSON WAS GENERALLY BROUGHT INTO COURT AND BROUGHT AMONG THE FULL
VENEER. THAT'S WHAT THE DIFFERENCE IS, IS THAT WE INVESTED MORE TIME AND WE INVESTED
MORE -- JUSTICE ALBIN: I DON'T KNOW THAT YOU'RE UNDERSTANDING
MY QUESTION OR MAYBE YOU'RE NOT ANSWERING THE QUESTION. BEFORE THE PANDEMIC
ADMINISTRATORS WOULD MAKE DECISIONS THAT THIS PERSON IS OVER THE AGE, NOT
QUALIFIED, OKAY, THAT'S NOT GOING TO A JUDGE. THERE MAY BE OTHER ISSUES, PRE
SCREENING ISSUES WHERE THE PERSON JUST CANNOT SIT FOR WHATEVER REASON. MAYBE THE
PERSON CAN'T UNDERSTAND ENGLISH OR WHATEVER. SO WHAT I WANT YOU TO DO IS
TELL ME WHAT WAS DIFFERENT WITH RESPECT TO THE PRE SCREENING PROCESS, IF ANYTHING.
YOU MAY SAY NOTHING. MR. NEARY: DEFRLS, DEFRLS, WE'LL START
WITH DE-FEFRLS, DE-IF HE RECALLS OTHERWISE WERE SELF EXECUTING.
JUSTICE ALBIN: THAT YOU SHOULD BE SAYING WONDERFUL, THAT'S WHAT YOU WANT, IT'S
NOT SELF EXECUTING, GO BEFORE A JUDGE. MR. NEARY: NO BUT
THE PROBLEM HERE IS THERE WERE 58 DE-IF HE RECALLS THAT WERE GIVEN BY CASE
MANAGEMENT, REMEMBER, RESPECTFULLY, THAT THAT IS A NEW PROCEDURE, THAT IS A NEW
ISSUE, THEY WERE BEING SCREENED ON THE ISSUE OF COVID, WHO WAS EXCUSED AND HOE
WASN'T EXCUSED, WHY WERE THEY EXCUSED OR WHY WEREN'T THEY EXCUSED.
JUSTICE FERNANDEZ-VINA: ARE YOU SAYING THAT PART OF THE PANDEMIC, THE COVID,
EVERY DEFERRAL WAS GIVEN BY A JUDGE THAT MANAGERS DID NOT DO, BECAUSE THAT'S
NOT ACCURATE AT ALL. MR. NEARY: NO, EVERY DEEFRLG WAS GIVEN
AUTOMATICALLY AND DEFERRED TO A DIFFERENT YEAR, THAT WAS SELF EXECUTING THROUGH
JURY MANAGEMENT. CHIEF JUSTICE RABNER: LET ME SEE IF I
UNDERSTAND, THE SELF WAS REMOVED, SO PRE COVID NONE OF THOSE 50 JURORS COULD POEBLLY
HAVE SAT ON YOUR CLIENT'S CASE, THEY WOULD HAVE DEFERRED ON THEIR OWN AND NOT BEEN
PART OF A LARGER VER KNEE. MR. NEARY: BUT THE QUESTION WAS
-- THE COURT: STAY WITH ME FR A SECOND. IS THAT CORRECT?
MR. NEARY: I'M HESITATING, CHIEF, I'M HESITATING, BECAUSE
I DON'T THINK IT IS, I DON'T THINK IT IS. AND I'LL TELL YOU WHY, IT'S BECAUSE
THERE'S AN I KNOW VES AT THIS WHICH YOU ARE OF AUTHORITY WITH REGARD TO
THE CASE MANAGER, THAT'S THE DIFFERENCE. THE COURT: I'M SIMPLY REFERRING
TO THE DISABLING OF THE SELF DEFERRAL, PRE COVID INDIVIDUALS COULD HAVE
SAID I'M PUTTING IT OFF AND THEY THEREFORE WOULD NOT HAVE SAT ON THE JURY IN YOUR
CLIENT'S CASE. THEY NO LONGER HAD THAT OPTION, SO PIVOTING OFF OF JUSTICE
ALBIN'S EARLIER QUESTION, ISN'T THAT A BENEFIT TO YOU? HOW IS IT A VIOLATION OF
YOUR CLIENT'S CONSTITUTIONAL -- PLFATTY: IT BECOMES A BENEFIT
WE KNEW HOW THE JURY MANAGER EXERCISED THAT AUTHORITY. THE
COURT: YOU'RE GOING TO A DIFFERENT FACT, THE FACT THAT THEY WERE SELF DEFERRED,
WAS ELIMINATED, HOW DOES THAT VIOLATE YOUR CLIENT'S CONSTITUTIONAL RIGHT.
MR. NEARY: BECAUSE IT INVESTS IN THERE JURY MANAGER A
DISCRETION THAT I DON'T KNOW ABOUT. WERE ALL 58 PEOPLE DEFERRED AUTOMATICALLY,
WE THE DON'T KNOW THAT, WE DON'T KNOW HOW THAT NUMBER WAS DETERMINED, THERE
MAY HAVE BEEN MORE PEOPLE WHO ASKED FOR -- JUSTICE ALBIN: YOU'RE
TELLING US THE SELF DEFERRAL WOVEN BETTER, WE DIDN'T WANT THESE PEOPLE BEING
EXAMINED, IS THAT WHAT YOU'RE SAYING. MR. NEARY: NO THE QUESTION
IS THAT THEY WERE EXAMINED, NOT THAT THEY WEREN'T. JUSTICE ALBIN:
I UNDERSTAND, BUT IF THEY WEREN'T BEING EXAMINED FOR THEIR SUITABILITY FOR
SERVICE, THEY WOULD HAVE BEEN DEFERRED, IS THAT THE ALTERNATIVE THAT YOU PREFER,
THAT THEY COULD HAVE JUST SELF DEFERRED? MR. NEARY: AND
THIS IS TK ARGUED IN THE CONTEXT OF HOW THIS JURY WAS BEING CONSTITUTED AT THIS
TIME AND THIS ERA. JUSTICE FERNANDEZ-VINA: ANSWER JUSTICE
ALBIN'S QUESTION, WOULD YOU PREFER THE SELF DEFERRAL OR NOT.
MR. NEARY: POST COVID, YES, WHEN WE'RE ALL BACK AND WE'RE NOT USING THE SYSTEM,
YES. BUT IN THIS PARTICULAR CIRCUMSTANCE, IN THIS CIRCUMSTANCE, UNDER THIS
PLAN, UNDER THESE, AND WITH THE WHAT I'LL CALL THE COVID QUESTIONNAIRE, REMEMBER,
THAT'S THE ELEPHANT IN THIS ROOM, THAT'S WHAT EVERYTHING IS BEING -- THE
PROCESS THAT IT'S BEING RUN THROUGH, AND WHAT I'M SUGGESTING IS THAT IT INVESTS
IN THE CASE MANAGER, THE CASE MANAGER, A DISCRETION THAT FOR THIS SET OF
CIRCUMSTANCES IS INAPPROPRIATE. CHIEF, YOU THEN SAID I'M ARGUING A SECOND THING,
ABSOLUTELY, BECAUSE I THINK I'LL USE THE TERM BLEEDS OVER TO. NOW WE NOW HAVE
AN I KNOW VES AT THIS WHICH YOU ARE OF THIS DISCRETION, I UNDERSTAND WHAT
THE STATUTE SAID, I UNDERSTAND. THE COURT: JUSTICE
ALBIN: I WANT TO UNDERSTAND WHERE THIS IS GOING, THE VENEER MAY BE A GROUP OF PEOPLE
WHO MAY BE SERVING ON ANY NUMBER OF JURY'S, CORRECT? THE LARGER VENEER.
MR. NEARY: RIGHT, BUT REMEMBER -- JUSTICE
ALBIN: JUST AM I CORRECT. MR. NEARY: RIGHT.
JUSTICE ALBIN: I WANT TO UNDERSTAND WHAT YOU'RE LOOKING FOR. ARE YOU SAYING THAT
ALL OF THE POTENTIAL ATTORNEYS IN ALL OF THE POTENTIAL CASES WHERE THESE
PEOPLE MAY SERVE ON JURY'S SHOULD BE INVOLVED IN DETERMINING WHETHER OR NOT SOME
JURY MANAGER DECIDES YEAH, YOU'RE GOING ON VACATION, YEAH, YOU CAN GO OR YOU
CAN'T GO, THAT'S WHERE YOU WANT TO BE? YOU WANT TO BE MAKING THAT DECISION?
MR. NEARY: AND I SAY THIS RESPECTFULLY, SO WORRY R WE'RE GOING
TO GET A PHONE CALL WE HAVE A LETTER FROM SOMEBODY THAT THEY'RE GOING TO DISNEY
WORLD OR SOMETHING, SO WE HAVE TO CHIME IN, THAT'S NOT WHAT THE FEAR IS
HERE, THE FEAR IS, IN THIS CIRCUMSTANCE, THAT'S WHY I KEEP GOING BACK TO THIS ORDER,
TO WHERE WE ARE HERE, IS THAT WE DON'T KNOW WHAT THE EXERCISE OF THAT
DISCRETION WAS EITHER ON DEFERRAL, WE DON'T KNOW WHAT THE EXERCISE OF DISCRETION
WAS ON EXCUSAL, ON EXCUSAL ALSO, BECAUSE IT'S THE EXCUSAL QUESTIONS TO BE --
CHIEF JUSTICE RABNER: THIS IS WHY YOU'VE ARGUED IT'S A CRITICAL STAGE
WHERE YOU AND YOUR CLIENT HAVE THE RIGHT TO BE PRESENTER. MR.
NEARY: YES, YES. CHIEF JUSTICE RABNER: SO BECAUSE WE'RE
TALKING ABOUT A LARGE POOL THAT IS BEING WHITTLED DOWN AND THEN CAN BE SERVED FOR
MULTIPLE JURY TRIALS IN THE COURTHOUSE AT THE SAME TIME, IS THE LOGICAL EXTENSION
OF YOUR ARGUMENT IS THAT ALL OF THE DEFENDANTS, ALL OF THE DEFENSE
ATTORNEYS AND ALL OF 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?
MR. NEARY: SEE, THE ANSWER IF WE HAVE ALL THE TRIALS AND ALL -- THE ANSWER IS NO,
IF IT'S ALL THE TRIALS. BUT THE PROBLEM HERE IS IT'S SINGULAR, IT'S ONE CASE,
IT'S ONE TEST. CHIEF JUSTICE RABNER: BUT WE'RE STILL TRYING
TO COME UP WITH THE LARGER VENEER PANEL THROUGH SOME OF THESE PRELIMINARY QUESTIONS,
DO YOU HAVE A MEDICAL EXCUSE, DO YOU HAVE A VACATION, ALL OF THESE SORTS
OF THINGS THAT TO MY UNDERSTANDING HAD BEEN ROUTINELY DONE BEFORE YOU ENDED UP
IN THE COURTROOM, IF YOU'RE RIGHT THAT YOUR CLIENT HAS THE RIGHT TO BE
PRESENT FOR THAT, DON'T YOU THEN HAVE THAT SAME RIGHT WHEN THE PROCESS AND THE OTHER
COURTROOMS DOWN THE HALL HAVE THE SAME RIGHT? MR. NEARY:
IF I WAS SAYING THIS RESPECTFULLY POST COVID WHEN WE'RE BACK, YES, BUT HERE,
HERE, AND I THINK WE CANNOT MISS THIS PARTICULAR POINT OF THIS ARGUMENT, IS THAT
COVID IS THE PREDOMINANT UNIVERSAL THEME IN THE JURY SELECTION. WHY ELSE, WHY
ELSE DO WE HAVE REALLY FOR THE FIRST TIME A QUESTIONNAIRE THAT IS DIRECTED
DIRECTLY TO THE SDEEDZ AND THE PANDEMIC? IT'S DIRECTED TO THERE.
JUSTICE LAVECCHIA: THE QUESTIONNAIRE, MR. NEARY, WAS NOT PREPARED JUST FOR YOUR
CLIENT'S CASE, IT WAS PREPARED FOR USE IN ALL OF THE VENEERS THAT WERE GOING
TO BE CALLED IN THE VARIOUS VICINAGES. MR. NEARY: RIGHT.
JUSTICE LAVECCHIA: SO HOW ARE WE GOING TO PRACTICALLY GIVE YOU THE KIND OF
RELIEF THAT YOU'RE ASKING FOR, FOLLOWING UP ON THE CHIEF'S QUESTION, WOULD WE
HAVE CIVIL LAWYERS AND CRIMINAL LAWYERS BOTH CHIME GO IN ON WHETHER OR NOT A PARTICULAR
DEFERRAL OR EXCUSE SHOULD BE ABLE TO BE GRANTORED IN THE PRE SCREENING
PROCESS. HOW DO YOU RECONCILE THOSE VARIOUS VIEWS. MR. NEARY: HE
KNOW MASS, NO, JUSTICE, NO. MY ARGUMENT IS SINGULAR TO MR. DANGCIL, TO THIS TRIAL,
WHILE I LOVE MY THE BROS AND THEY HAVE SEPARATE ARGUMENTS, ALL I CARE ABOUT
IS DANGCIL, AND I'M SAYING IN THIS PROCESS, DONE THE FIRST TIME, THAT WE DON'T
KNOW, AND THE WE MORE IMPORTANTLY THAT COUNSEL FOR DANGCIL AND MR. DANGCIL
HYMNS DO NOT KNOW THE EXERCISE OF THAT CHALLENGE. IT GETS US TO WHAT IS THE --
JUSTICE ALBIN: ARE YOU SAYING THAT THERE WERE NO RECORDS
KEPT BY THE JOORNGS AS TO WHY PEOPLE WERE JURY MANAGERS AS TO WHY PEOPLE WERE EXCUSED.
MR. NEARY: DOESN'T SEEM THAT WAY, JUSTICE, DOESN'T SEEM THAT
WAY. LATER ON THE TRIAL JUDGE GAVE THE ANSWERS TO THE COVID QUESTIONS, THE BETTER
THING WOULD HAVE BEEN WHO WAS EXCUSED AND WHY. JUSTICE ALBIN:
LET'S STAY WITH THE COVID QUESTIONS, YOU GOT THE ANSWERS FOR THOSE FOR THE PEOPLE
WHO WERE EXCUSED. MR. NEARY: YES. JUSTICE
ALBIN: SO, LOOK, HAVE YOU TESTED POSITIVE FOR COVID 19 WITHIN THE LAST 21 DAYS,
DO YOU HAVE A PROBLEM WITH THAT. MR. NEARY: NO.
JUSTICE ALBIN: IT WOULDN'T MAKE A DIFFERENCE IF SOMEONE WAS ASKED HAVE YOU
TESTED POSITIVE IN THE LAST 21 DAYS FOR BUBONIC PLAGUE. MR.
NEARY: JUSTICE, WE CAN GO THROUGH THE WHOLE LIST OF QUESTIONS, BUT THE FOCUS THERE
IS ON HEALTH CONCERNS, AM I OKAY OR I'M GOING TO BRING THE DISEASESES, AND
THE ISSUE IS THE ISSUE THAT WE'RE WORRIED ABOUT HERE IS WHAT IS THE EFFECT OF THE
DISEASE ON THE GREATER POP LASHGS MY ARGUMENT AND THIS GOES TO THE FAIR
CROSS-SECTION, I THINK WE ALL RECOGNIZE THAT THE GENERAL SOCIETAL VIEW IS THAT
COVID HAS AFSHTHS ON VARYING COMMUNITIES. JUSTICE PATTERSON:
SO YOU ARE MAKING A DISTINCTION, THINK OF TWO SCENARIOS, ONE CALLS THE JURY
MANAGER AND SAYS I'M GOING IN FOR HEART SURGERY AND I WON'T BE ABLE TO SERVE, THAT'S
EASY, YOU DON'T CONTEND THAT YOUR CLIENT HAS ANY RIGHT TO BE PRESENT WHEN THAT
CONVERSATION PLAYS ITSELF OUT BETWEEN THE JURY MANAGER AND THAT INDIVIDUAL
AND THE JURY MANAGER PRESUMABLY GIVES A DEFERRAL. MR. NEARY:
I WOULD ALMOST THINK THAT'S AN EMERGENT TYPE KINDS OF REQUEST, I CAN'T SHOW UP
BECAUSE I'M IN THE HOSPITAL TONIGHT. JUSTICE PATTERSON: BUT
YOU'RE MAKING AN ARGUMENT THAT THIS IS AN IT KR KAL STAGE AT WHEN YOU AND YOUR
CLIENTS HAVE THE RIGHT TO BE PRESENTS, SO IF IT DOESN'T INVOLVE COVID BUT IT IS
A HEALTH ISSUE, YOUR CONTENTION IS THAT'S NOT A CRITICAL STAGE, DOESN'T HAVE TO
BE COVID. MR. NEARY: NO. CHIEF JUSTICE RABNER:
HOW ABOUT A VACATION NOTE, IS THAT A CRITICAL STAGE WHERE YOU HAVE THE RIGHT
TO BE PRESENT. MR. NEARY: I'VE SEEN IT BOTH WAYS.
THE COURT: I'M ASKING THE LEGAL QUESTION. MR. NEARY: AS A CRITICAL
STAGE MY ANSWER IS IT COULD BE, FORGIVE A VERY LAWYER LIKE ANSWER, BUT IT COULD
BE, IT COULD BE, BECAUSE AND I'VE SEEN TRIAL JUDGES SAY THIS CASE IS ONLY GOING
TO TAKE TWO WEEKS SO YOU'RE GOING TO GO AWAY FOR 4 WEEKS.
JUSTICE ALBIN: THAT'S DIFFERENT, WE'RE TALKING ABOUT THE PRE SCREENING STAGE, FOR
THE VENEER, FORGET ABOUT THE JURY SELECTION, OF COURSE WHEN THE JURY IS
BEING SELECTED YOU'RE PARTICIPATING IN THAT. YOU WANT TO, WHEN THE LARGER VENEER
IS BEING DECIDED, YOU WANT TO BE IN THERE DETERMINING WHETHER OR NOT THE PERSON
GETS THAT TWO WEEK VACATION? MR. NEARY: I'M WORRIED ABOUT NOW WHAT
THE REACTION OF THE POTENTIAL VENEER PERSON WOULD BE WITH REGARD TO THE
PREDICAMENT WE'RE IN RIGHT NOW IN TERMS OF COVID, AS I'VE SUGGESTED, THE WIDER
SOCIETY RECOGNIZES THAT THE PANDEMIC HAS AFFECTED SEGMENTS OF SOCIETY
DIFFERENTLY, BLACKS, HISPANICS, WOMEN, WOMEN HAVE BORN A GREATER BURDEN WITH REGARD
TO THIS PANDEMIC, THE LITERATURE IS REPLETE WITH THAT.
JUSTICE PATTERSON: RIGHT NOW WE'RE ONLY ON NON COVID QUESTIONS TO EXPLORE THE CRITICAL
STAGE ARGUMENT THAT YOU'RE MAKING AND IF WE'RE JUST TALKING ABOUT SOMEONE
IS GOING ON A TWO WEEK KRUSE AND I'M SAYING THAT IN DEFERENCE TO JUSTICE ALBIN
WHO IS ON A NAUTICAL BENDER TODAY, BUT IF WE'RE GOING ON A TWO WEEK KRUSE
AND IT HAS NOTHING TO DO WITH COVID, YOU DON'T HAVE THE RIGHT TO BE THERE WITH
THE JURY MANAGER AND SAY YES OR NO WITH REGARD TO THE KRUSE. MR.
NEARY: I DON'T HAVE A PROBLEM WITH THAT ONE. JUSTICE PATTERSON:
SO WHAT YOU'RE SAYING IT BECOMES A CRITICAL STAGE BECAUSE SOME OF THE
INTERACTIONS BETWEEN THE JURY MANAGER AND THE POTENTIAL JUROR MAY VOFRL CONCERNS
ABOUT OR EXPOSURE TO COVID. SO COVID MAKES IT A CRITICAL STAGE.
MR. NEARY: AND I DON'T UNDERSTAND EXPOSURE TO, IS THE EFFECT OF THE DISEASE ON
THEIR ABILITY TO SERVE. I'LL GIVE AN EXAMPLE, IF IT'S THE MOM WHO HAS TO
STAY HOME WITH THE KIDS TO MAKE SURE THAT THEY GET -- BECAUSE THEY'RE BEING SCHOOLED
REMOTELY, REMEMBER WHAT WE'RE TALKING ABOUT HERE, WE'RE TALKING ABOUT SEPTEMBER
OF 2020. JUSTICE PATTERSON: SO IS IT YOUR ARGUMENT
THAT THE JURY MANAGER HAS TO SAY OR SHOULD BE SAYING I CAN'T TELL YOU THE ANSWER,
YOU'VE GOT TO COME TO COURT. MR. NEARY: YES. THAT HAPPENS ALL THE
TIME, RESPECTFULLY, THAT HAPPENS ALL THE TIME, IS THAT -- JUSTICE
FERNANDEZ-VINA: THEY MAY BE SHOWING SYMPTOMS OF THE COVID, THEY SHOULD BE COMING
TO COURT? MR. NEARY: I'M SORRY FIFRMENT IF THEY TALK TO
THE MANAGER AND SAY I'M SUFFERING FROM SYMPTOMS OF COVID, YOU THINK THEY SHOULD
COME INTO COURT AND EXPLAIN IT. MR. NEARY: NO, IT'S NOT THE
HEALTH ISSUE, IF SOMEONE SAYS THEY'RE SICK -- JUSTICE
FERNANDEZ-VINA: ISN'T THAT WHAT THESE QUESTIONS ARE MEANT TO ELICIT.
MR. NEARY: I'M WITH THE SICK QUESTIONS, THE QUESTIONNAIRE DEALS WITH SICKNESS,
BUT THERE IS SOMETHING DIFFERENT ABOUT THIS SELECTION PROCESS, WE DON'T
SEND OUT A QUESTIONNAIRE AND SAY DO YOU HAVE THE FLU TODAY OR A COLD TODAY, WE
SPECIFICALLY WITH WITH REGARD TO THIS BECAUSE OF THE IMPORTANCE OF PUBLIC
HEALTH. JUSTICE PIERRE-LOUIS: SO IS IT ONLY THE QUESTIONS
WITH REGARD TO A POTENTIAL JUROR'S CONCERN ABOUT COVID THAT YOU ARELY INDICATING
WOULD BE A CRITICAL STAGE THAT REQUIRES YOUR PARTICIPATION? MR.
NEARY: YES, JUSTICE IN ADDITION TO CONCERN WITH REGARD TO, AND IT'S NOT JUST I'M
AFRAID TO GO INTO THE BUILDING BECAUSE I DON'T WANT TO BE EXPOSED, I THINK
IT'S THE ISSUE OF THE EFFECT, WHAT IS THE EFFECT THAT THE PANDEMIC HAS ON THE DISTINCT
POPULATION, AND. JUSTICE PIERRE-LOUIS: SO ARE YOU SAYING -- SO
IF SOMEONE CALLS A JURY MANAGER AND SAYS I THINK I MAY HAVE BEEN EXPOSED, THEY
-- YOU DON'T NEED TO BE -- MR. NEARY: WE DON'T WANT THEM IN THE
BUILDING. JUSTICE PIERRE-LOUIS: IF SOMEONE CALLS AND
SAYS I AM APART OF A DEMOGRAPHIC THAT HAS BEEN DISPROPORTIONATELY IMPACTED BY COVID,
I DON'T WANT TO SERVE, YOU THINK THAT PERSON HAS TO COME IN AND BE
QUESTIONED BY THE JUDGE. MR. NEARY: YES, I BELIEVE THAT PERSON HAS
TO COME TO COURT, AT A MINIMAL, AT A MINIMAL, IN INFORMATION HAS TO BE
CATALOGUED, WE HAVE TO KNOW WHOSE BEING EXCLUDED. JUSTICE
PIERRE-LOUIS: AND YOU WANT TO BE PARTICIPATING IN THE DECISION AS TO WHETHER
THAT INDIVIDUAL'S JURY SERVICE IS DEFERRED. MR. NEARY: YES,
THAT GOES BEYOND ADMINISTRATIVE. CHIEF JUSTICE RABNER: I
JUST WANT TO FURTHER YOUR ARGUMENT ALONG HERE BECAUSE WE'RE WELL BEYOND
THE 20 MINUTES AND WE HAVEN'T ADDRESSED YOUR CROSS-SECTION CLAIM YET. TELL US,
YOU'VE ALLEGED THERE'S A CONSTITUTIONAL VIOLATION HERE, TO MAKE OUT SUCH
A CLAIM YOU HAVE TO SHOW SUBSTANTIAL UNDER REPRESENTATION OVER A SIGNIFICANT PERIOD OF
TIME, CAN YOU GIVE US A THUMBNAIL SKETCH ASSIST TO HOW YOU HAVE ACCOMPLISHED
THAT. MR. NEARY: THAT ISSUE AGAIN, UNIQUE TO THIS PROCESS
AND UNIQUE TO THIS TIME IN HISTORY, THIS ISN'T SOMETHING THAT'S SYSTEMATIC AND
WE'VE DEALT WITH THE ISSUE OF SYSTEMATIC SECLUSION OF MINORITIES WITH REGARD TO
JURY'S, BUT WE'RE RUNNING THIS THROUGH A PRISM, WHAT DRA PLAQUE EFFECT DOES THIS
HAVE, WE DON'T HAVE JURISPRUDENCE FOR THIS ONE, THIS PANDEMIC IS ON US AND WE
HAVE TO LIVE IT AND EXECUTE THROUGH IT. JUSTICE ALBIN: THE QUESTION
YOU HAVE BEEN ASKED, WHAT ARE YOUR PROOFS, JUST STATE THEM. MR.
NEARY: NONE, THE MROOFS ARE NONE, AND I SAY THIS BECAUSE WE DON'T KNOW -- THE TOE
TOLLING IS THAT WE DON'T KNOW, BECAUSE A WE DORNT WHAT DISCRETION IF THERE WAS
DISCRETION WAS EXERCISED BY JURY MANAGEMENT, TWO, THERE'S NO RECORD WITH
REGARD TO IT, AND 3 -- JUSTICE ALBIN: ONE OF THE REASONS WHY
THERE'S NO RECORD, MAYBE, IS BECAUSE THE OBJECTION WAS MADE DURING THE JURY
SELECTION PROCESS NOT WHEN THE OBJECTION SHOULD HAVE BEEN MADE IF THERE WAS A
CHALLENGE TO THE VENEER. CORRECT? MR. NEARY: I'M GOING TO
GIVE YOU A LITTLE BIT OF AN INDIRECT AND LONG WINDED ANSWER ON THAT ONE,
EVERYBODY WAS AWARE, MY SISTER IN HER BRIEF MISS CHASMER PUTS IN HER BRIEF THAT
EVERYBODY WAS AWARE THAT TRIAL COUNSEL WAS GOING TO OBJECT TO THE PROCESS OF THE
JURY SELECTION. CHIEF JUSTICE RABNER: AND THE OELTS WAS
ORDER TO SHOW CAUSE WAS LEVELED AFTER THE PROCESS HAD BEGUN.
MR. NEARY: AND 183 REQUIRES IN WRITING, BUT 182 SAYS YOU CAN EXPAND THE RULES
FOR THE EFFICIENCY OF JUSTICE, EVERYBODY WAS ON NOTICE THAT THIS WAS COMING,
EVERYBODY WAS ON NOTICE, SO WE KNOW AT 924, JURY SELECTION STARTED ON THAT MORNING
AND 1123 THE NOTICE OF MOTION HAD BEEN FILED, 13 PEOPLE HAD ALREADY BEEN TALKED
ABOUT, EVERYBODY WAS ON NOTICE THAT THIS WAS COMING DOWN THE PIKE. I THINK
PRUDENCE WOULD HAVE BEEN HOLD IT OFF, BECAUSE THIS WOULD BECOME THE PROBLEM, AND
THEN THEY CONDITIONED THE JURY PROCESS FOR THE FOUR DAYS. JUSTICE
ALBIN: I DON'T WANT TO EXPAND THIS BUT WHAT YOU'RE SAYING IS THAT TRIAL JUDGE SHOULD
BE SOMEWHAT LIKE OF A MIND READER, I THINK THIS MOTION MAY BE COMING AND
MAYBE I SHOULD DO SOMETHING WHILE I'M WAITING FOR THIS MOTION TO COME. I DON'T
EVEN UNDERSTAND THAT. COUNSEL HAS AN OBLIGATION, THERE ARE RULES, YOU WANT
TO CHALLENGE THE VENEER, THERE'S A TIME IN WHICH TO DO IT, THE TIME ISN'T TO DO
IT AFTER THERE ARE 13 PEOPLE IMPANELED. MR. NEARY: JUSTICE,
I UNDERSTAND, BUT AGAIN, I THINK THE UNIQUENESS OF THIS SITUATION MAY HAVE
INVITED A PORTION -- JUSTICE ALBIN: I'M ONLY SAYING THIS MR. NEARY
BECAUSE THERE MAY HAVE BEEN AN OPPORTUNITY TO MAKE A RECORD, YOU'RE COMING HERE
I HAVE NO RECORD, CAN'T TELL YOU ON ANY PROOFS AT ALL, RELY ON SPECULATION,
THAT'S WHAT YOU'RE SAYING. MR. NEARY: THE RE TORT HAS ALWAYS BEEN
THIS IS ALL SPECULATION, IF COUNSEL WERE THERE IT WOULDN'T BE SPECULATION,
THEY WOULD HAVE SEEN, THEY WOULD HAVE COUNTED -- JUSTICE
LAVECCHIA: WHAT DEFERENCE DO WE GIVE TO THE TRIAL COURT'S OBSERVING THAT THE JURY
VENEER SEEMED TO REPRESENT A FAIR CROSS-SECTION OF THE POPULATION AND
THERE WAS NO COMMENTS BY THE COUNSEL TO THE COURT'S OBSERVATION. MR.
NEARY: I THINK THAT'S A DETERMINATION AFTER THE FACT, I THINK YOU HAVE TO START
WITH THE CROSS-SECTION, THE ANALYSIS STARTS HERE, NOT AT THE END, IT STARTS
HE T BEGINNING. JUSTICE LAVECCHIA: SO YOU CAN'T GIVE ANY
DEFERENCE TO THE FACT THAT THE COURT MADE THAT OBSERVATION AND COUNSEL SAID NOTHING,
NOTHING TO PUT IT IN CONTEXT AS YOU'RE TRYING TO DO NOW. MR.
NEARY: I THINK IT WOULD BE MORE CRITICAL, AGAIN, NOT TRIAL COUNSEL MAY NOT HAVE BEEN
CAST IN THE BEST CONSTITUTIONAL FRAMEWORK, BUT THE TRIAL COUNTRIES CONTINUOUSLY
SAID I DON'T KNOW WHO WAS PICKED, I DON'T KNOW HOW THEY WERE PICKED, THE MORNING
OF THE ORDER TO SHOW CAUSE IS WHEN BRIAN MCLAUGHLIN AND MISS FIGUEROA'S
CERTIFICATIONS WERE PRESENTED, THE TRIAL COURT RELIED ON THOSE BUT NEVER DOUG INTO THE
3/4 THINGS THAT I ASKED ABOUT. CHIEF JUSTICE RABNER: IN THE
INTEREST OF TIME, LET'S NOT GO THROUGH IT. AGAIN. WE HAVE YOUR POSITION
JOSEPH E. KRAKORA: WITH YOUR COMBHENTS RIGHT BEFORE WE STARTED
IN SOI FAR AS THE BECAUSE I HAD BASICALLY A 3 TO 5-MINUTE LITTLE PIFRP TO MAKE
TO THE COURT ABOUT AN INITIATIVE IN ESSENCE TO COLLECTS DATA GOING
FORWARD. I DO HOWEVER WITH YOUR INDULGENCE IFRMENTS WOOER NOT DISCOUNT THAT GO
WE EVER IT AND WILL CONSIDER IT. JOSEPH E. KRAKORA: NO AND
I I WOULD LIKE TO FOCUS A LITTLE BIT ON THIS PARTICULAR CASE TO THE EXTENT
THAT THAT'S AEN WHICH IS WHAT I THINK YOU WANTED TO DO. I WOULD VIEW IT IN THIS
SENSE: WHEN THE COURT STARTED TO TRY TO FIGURE OUT A WAY TO RESUME JURY TRIALS
WITH REMOTE JURY SELECTS BACK LAST SUMMER, THE TWO CONCERNS THAT CAME TO OUR LAWYERS
WERE ONE, ACCESS TO TECHNOLOGY AND THE RISK OR AT LEAST THE POTENTIAL THAT
SOME PORTION OF THE JURY FOLKS OUT THERE WOULD BE EXCLUDED BECAUSE THEY EITHER
DIDN'T HAVE ACCESS TO TECHNOLOGY ORTD SKIM SETD TO UTILIZE IT, THAT WAS ONE, AND
THE SECOND MAIN CONCERN AT LEAST WHERE THERE WAS A POTENTIAL FOR ASK YOUING THE
JURY PANEL WAS THE DISPROPORTIONATE INL PACKET THAT WE ALREADY NOW COVID-19
HAD ON PEOPLE OF COLOR ESPECIALLY THOSE LIVING IN OUSH AND XHUNTS AND THAT THEY
WOULD BE DIFFICULTIES PROPORTIONALITYLY EXCLUDED FROM THE PROCESS. SO WE HAD
THE QUESTIONS THAT WERE DEVISED TO ADDRESS THE COVID NINE RELGED ISSUES AND
ONE CRITICISM I WOULD HAVE OF THE PROCEDURE THAT WAS USED IS THAT THE JURY
MANAGER DID NOT KEEP SEPARATE TRACK OF THE JURORS WHO WERE EXCUSED BASED
ON THOSE ANSWERS TO THE FIEFR COVID-19 THEY WERE BUT THE IN ONE BUK ET OF HARD
SHINS MEDICAL AND OTHERWISE. SO AS THE JURY MANAGER EXERCISED DISCRETION
TO EXCUSE AN AND DID HE FEFR PEOPLE BECAUSE OF THEIR ANSWERS TO THOSE COVID-19
QUESTIONS WE DON'T KNOW FOR EXAMPLE WHETHER OR NOT THIS WAS SOMEONE WHO
HAD A HEART CONDITION WHO UNDER ANY CIRCUMSTANCES HAVE BEEN YOU KNOW ROUTINELY EXCUSED
BECAUSE OF MEDICAL REASONS, OR WHETHER THIS WAS SOMEONE WHO WAS CLAIMING TO
HAVE A HEART CONDITION AND THEREFORE A GREATER CONCERN OF GETTING COVID-19 WHO
MIGHT OTHERWISE BE ABLE TO SERVE BUT HAD THIS HEIGHTENED CONCERN BECAUSE OF THE
UNDERLYING CONDITION. SO I THINK WHAT SHOULD HAVE HAPPENED HERE IS THAT
THE JURY MANAGER SHOULD HAVE KEPT SEPARATE DATA WITH RESPECT TO THOSE JURORS THAT
WERE EXCUSED BECAUSE OF THEIR ANSWERS TO THOSE SPECIFIC COVID-19 QUESTIONS.
BECAUSE I DON'T TAKE ISSUE WITH THE PROCESS WHERE ROUTINELY THE JURY MANAGER HAS
DISCRETION TO GET PEOPLES PRESCREENING TO GO BACK TO JUSTICE ALBINS POINT
RIGHT PRESCREENING THE PERSON WRITES IN OR CALLS IN AND SAYS I HAVE PREPAID TICKET
TO GO ON VAK THAT WE CAN AND THE JURY MANAGER RU TIENLY DEFRS THE PERSON
OR THE PERSONS SAYS I HAVE SURGERY OR MY PAER IS IN THE HOSPITAL YOU KNOW THOSE
ARE THE BASIC ONES I WOULD NEVER SUGGEST FOR A MINUTE THAT THE NL MANAGER
SHOULD FRNT XER SIZE DISCRETION IN DEFERRING OR EXCUSING THOSE JURORS FAT PAT YOU
VIEW THATS AN I CRITICAL STAGE MR. CRACK. JOSEPH E. KRAKORA:
WELL LISTEN E DON'T TWANT TO GET INTO UNDERMINING THE ARTHSDZ OF THE
DEFENDANT IN THIS CASE BUT I AM HARD PRESSED TO CALL THAT A CRITICAL STAGE IF ALL THE
JURY MANAGER IS DOING IS GETTING THE QUESTIONNAIRE RETURNED RIGHT BY A JUROR,
WIDE 533 OF THE 8 HUNDRED DID RETURN THEIR QUESTIONNAIRES AS I UNDERSTAND
THE FACTS, AND NL OF THEN PROBABLY PUT THIKS ON THERE THE QUESTIONS ASKED FOR
THAT INFORMATION RIGHT? AND THE JURY MANAGER EXERCISES SOME BASIC LEVEL NOW NOT
ALL HARDSHIPS ARE EXCUSED BY THE JURY MANAGER BECAUSE WE KNOW AT THE
BEGINNING EVER EVERY TRIAL IN THE COURTROOM ONE OF THE FIRST QUESTIONS THE JUDGE
SAYS IS THIS TRIAL IS GOING TO LAST 3 WEEKS, WOULD THAT POSE A HARDSHIP FOR YOU?
AND PEOPLE WHO ARE SELF-EMPLOYED FOR EXAMPLE OR PEOPLE WHO HAVE VACATIONS
IN 3 WEEKS NIGHT HAVE BEEN ABLE TO SIT ON A WE CAN WE CAN CASE THAT HAPTS THOSE
ARE FOLKS WHO ARE OBVIOUSLY NOT EXCUSED BY THE JURY MANAGER AS BART OF THAT
PRESCREENING PROCESS AND I HAVE I WOULDN'T TAKE ISSUE WITH ANY OF THAT I THINK
THAT'S APPROPRIATE. SO I THINK IF WE ARE GOING TO FOCUS ON THE IMPACT OF THE
PANDEMIC ON JURY SELECTION NOT JUST IN THIS CASE THAT WE ARE HEARING THE APPEAL
YOU BUT LET'S FACE IS KWEERG DOING HAVE MORE REMOTE JURY SELECTION GOING
FORWARD BECAUSE WE ARE NOT DONE WITH THIS YET, KWEE ALL WANT TO GET BACK TO IN PERSON
PROEGS BUT WE ARE GOING TO CONTINUE TO HAVE COVID-19 RELATED ISSUES KONL UP
WITH JURORS WHO REPORT FOR JURY DUTY WHETHER THAT'S REMOTELY OR IN WITH E THIS E
COME BACK IN PERSON. RIGHT? PEOPLE FOR EXAMPLE WHO ARE UNVAKS NATED WHO MIGHT
HAVE HEIGHTENED FEAR OF KONL BACK INTO COURT, THERE'S STILL ISSUES THAT WE ARE GOING
TO CONFRONT AND I THINK THIS CASE CAN BE A VEHICLE FOR THE COURT TO MAYBE
MORE CLEARLY DEFINE HOW THE JUROR SHOULD BE SCREENED WITH RESPECT TO THOSE CONCERNS.
AND JUST ONE OTHER POINT. I DON'T CHIEF IF I AM GETTING OFF
YOUR DIRECTION PLEASE FORGIVE KNEE BUT I JUST I FEEL THIS IS A REALLY IMPORTANT
POIN. IN PROPOSING TO THE COURT THAT WE ENHANCE OUR DATA COLLECTION OF
DEM GRAPHICS GOING FORTD IN THIS STATE IN TOIPS OF RAK ETHNIC BACKGROUND, AGE,
FOR EXAMPLE, TWO REALLY DIEN NICKS AT WORK. ONE I THINK IS COVID-19 THE I
AM FACT ON OUR CRIMINAL JUSTICE SYSTEM, LESSONS TO BE LEARNED AND LESSONS TO BE
LEARN FROM THIS CASE. AND I'VE KIEFR ARTICULATED THOSE IN TERMS OF CONCERNS ABOUT
SKUG THE JURY PANEL BECAUSE OF REASONS SPECIFIC DO JURY TO COVID-19 THAT
MIGHT RESULT MIGHT MERCADO TENSION BLEE BLEE DON'T KNOW DWLEE DON'T HAVE THE DATE
TO SUPPORT IT THAT IS FART OF THE I SHALL IN BUT THE OTHER ONE I THINK IS
LESSONS TO BE DERND AND WE DIDN'T PUT THIS IN OUR BRIEF AND WE PROBABLY SHOULD
HAVE WE TALKED ABOUT IT LESSONS TO BE CLERND FROM VERY ARE ARE AND LIT IKS
WE KNOW FROM THE CITY OF NEWARK OF C J R THAT AND THE LIT I CAN ENACTMENT IMPLEMENTATION
THE FIRST 4 YEARS GOING FORWARD TRYING TO PERFECT IT DOMESTIC VIOLENCE WE
ALL UNDERSTAND, WE SHOULD RECOGNIZE AS A CRIMINAL JUSTICE SYSTEM THAT THERE IS
A ROLE FOR AND LIT IKS AND THERE IS A ROLE FOR IT IN JURY SELECTION THAT
HAS NOT HISTORICALLY BEEN PART OF OUR PRACTICES. AND TO THE EXTENT AND TO THE
EXTENT THAT MAKING THAT PITCH TO THE COURT IT'S NOT MEANT TO BE AN INDICTMENT
OF THE PROERS WEEFSHL USING FOR THE LAST 4 DECADES GOING BACK TO DAYS WHEN
WE HAD NL ISSUES IN THE CAPITAL MURDER SCENARIO WHICH ONLY A KUNL OF YOU HAVE BEEN
ARN LONG ENOUGH TO REMEMBER, AND SO I THINK THOSE ARE POINTS TO BE MADE,
THAT THIS IS JUST A VEHICLE PERHAPS FOR THE COURT GOING FORWARD NOT JUST WITH THE
REMOTE TRIALS AND THE INITIAL IN PERSON TRIALS WHERE COVID-19 ISSUES ARE
STILL BUT GOING FORWARD BEYOND THAT TO IMPROVE OUR SYSTEM BY RECOGNIZING AND LIT
IKS COULD PLAY IN INSURING GOING FORWARD THAT THE KOERTD SYSTEM IS OPERATING
FAIRLY, THAT PEOPLE ARE NOT BEING UNFAIRLY EXCLUDE THE FROM JURY DUT FEE AND ILTS'
JUST SOMETHING THAT WOULD I AM PROFIT SYSTEM. CHIEF JUSTICE
RABNER: THANK YOU. LILA B. LEONARD: WITH A PRETTY SIM FOEL
STATE. CHIEF JUSTICE RABNER: THANK YOU MR. LOSE BURGLARY.
LAWRENCE S. LUSTBERG: GOOD MORNING. MAY IT PLEASE THE COURT.
OPERATING AN THE SOMEWHAT OF A DISADVANTAGE HERE TODAY NOT BECAUSE OF THE
NATURE OF THE LEGAL ISSUES BUT BECAUSE IN A MRAUDING ENTHUSIASTICALLY DURING
THE SPEECHES I ACTUALLY BROKE MY GLASSES EXHIBIT A. I ACTUALLY THINK THESE GLASSES
MAYBE THE SAME GLASSES I WORE 20 SOMETHING YEARS AGO WHEN I FIRST ARGUE
BEFORE JUST LAF SO IT WAS TIME FOR THEIR TIME HAD COME IN IN ANY EVENT.
I WOULD LIKE TO JUST BRIEFLY ADDRESS THE ISSUE OF CRITICAL SFAJ WHICH IS AT
THE CORE OF THIS ARGUMENT TODAY. LET'S BE CLEAR. THIS IS
COMMUNITY SUPERVISION FOR LIFE A TOUGH CASE. WE ALL KNOW THAT ON THE ONE
HAND THERE IS THE ADMINISTRATIVE PHASE OF THE PROCESS, THE CREATION OF THE PANEL.
ON THE OTHER HAND SHG THERE IS WHAT HAPPENS DURING VOISH DIR ARN EVERYBODY
RECOGNIZES THIS COURT HAS SAID THAT WHAT HAPPENS DURING VOIR DIRE IS A CRITICAL
STAGE. THAT IS A CRITICAL STAGE COUNSEL IS SUPPOSED TO BE PRESENT THE
DEFENDANT IS SUPPOSED TO BE PRESENT, NO DOUBT ABOUT THAT. ON THE OTHER HAND WHAT
HAPPENS IN THE JURY MANAGEMENT OFFICE WHEN I AND I WILL TELL YOU I HAVE DONE
THIS I HAVE CALLED THE MORRIS COUNTY JURY MANAGEMENT OVRGS AND SAID I HAVE A VACATION
I DON'T GO ON VABLGS THAT MUCH BUT I HAVE DONE IT AND I GET MY JURY SERVICE
DEFERRED. JUSTICE PATTERSON: THAT'S BEEN DULY NOTED.
LAWRENCE S. LUSTBERG: I AM SURE YOU DID NOTE IT. JUSTICE
PATTERSON: SEVEN TIEMENTS A YEAR SEEPS LIKE A LOTD. LAWRENCE S.
LUSTBERG: YEAH IT DOES YOU HAVE GO THE TO HAVE A CONVERSATION WITH MY WIFE ABOUT
THAT. SO SO MY SO THE QUESTION IS WHERE IS THAT LINE DRAWN AND IT IS A
HARD LINE TO DRAW BECAUSE THE QUESTIONS AND THIS IS UNIQUELY SO, THE QUESTIONS
THAT ARE RAISED AT EACH OF THOSE TWO STAGES ARE IDENTICAL IN SOME WAYS.
MR. NEAR RECORRECTLY STATES THAT WHEN YOU GET IN FRONT OF THE JUDGE, A LOT OF THE
QUESTIONS ABOUT HARDSHIP, ABOUT MENTAL AND PHYSICAL CONDITION, ABOUT FINANCIAL
ISSUES, IN FACT I WOULD INVITE THE COURT TO LOOK AT THE ADMINISTRATIVE OFFICES
OWN MODEL QUESTIONS FOR VOIR DIRE IN THE CRIMINAL CASES. IT ENCOMPASSES THOSE
THINGS. SO WHAT'S HARD ABOUT THIS ISSUE FOR THE COURT IS THAT THE SAME QUESTIONS
THAT ARE BEEGS RAISED AT THE IN THE CREATION OF THE CONVENIENT ANYWHERE ARE
WILL ALSO ASKED IN OPEN COURT IN 1 CASE WE SAY NOBODY HAS TO BE THERE, IN ANOTHER
CASE WE SAY THE DEFENDANT HAS AN ABSOLUTE RIGHT. SO HERE'S MY ON BEHALF OF THE
BAR ASSOCIATION PROPOSED ^ SHRUGS ^ SOLUTION TO THAT CONUNDRUM BECAUSE I
THINK IT IS A CONUNDRUM. FIRST I THINK THAT IF THERE IS ANY QUESTION AS TO WHETHER
SOMEBODY QUALIFICATIONS TO BE ON THE JURY UNDER 2 B 20- 1 WHICH INCLUDES
MENTAL AND PHYSICAL CAPACITY, OR IF THERE IS ANY QUESTION AS TO THEIR QUALIFICATIONS
FOR AN EXCUSE UNDER 2 BCHLTD 20- 10, IF IT'S A CLOSE QUESTION, THE JUDGE
SHOULD DECIDE IN THE PRESENCE OF COUNSEL AND THE DEFENDANT. TO PUT IT ANOTHER
WAY THE WAY I WOULD PUT IT IS THAT THERE SHOULD BE A PRESUMPTION IN -- THAT
THE THAT CAN BE OVER KONL BY DOCTORS NOTES, BY EVIDENCE, WHATEVER, THAT THE JUROR
MANAGEMENT OFRTS CAN DOE PLOY AS TO WHETHER AND WHEN A PERSON DOES NOT HAVE
TO GO BEFORE THE THERE CAN BE A PRESKUNL SNUN THAT THEY DON'T.
JUSTICE ALBIN: I WANT TO UNDERSTAND. LAWRENCE S. LUSTBERG: I SAID
THAT FACTORLY NO WONDER YOU ARE ASKING ME A QUESTION. JUSTICE
ALBIN: WE HAVE A SELECTION OF THE CONVENIENT ANYWHERE OKAY LARGE GROUP OF
PEOPLE WHO MAYBE GOING OFF TO A NUMENT OF DIFFERENT JURYS. SO ILLNESS IS
PRESENTED TO THE JURY MANAGER. ARE YOU SUGGESTING THAT ALL THE POTENTIAL V TENSION
ATTORNEYS INVOLVED IN THE CASE GATHER TOGETHER. LAWRENCE S.
LUSTBERG: ABSOLUTELY NOT YOUR HONOR. JUSTICE ALBIN: OKAY
LOYAL. LAWRENCE S. LUSTBERG: AND MR. MCNAMARA LAUFR LIN MY
FRIEND MR. MCNAMARA LAUB HAVE WHO LAYS THIS OUT IN HIS CERTIFICATION PEOPLE COME
SHOW UP WITH A DOCTORS NOTE AND GENERALLY WHAT THE A SIGN IT JUDGE OR THE
JURY MANAGEMENT OFFICE WILL DO WHO IS DECEMBER INED BY THE A SIGN MANY JUDGE WILL SAY
YOU HAVE A DOCTORS NOTE, FINE, YOU ARE EXCUSED. I'M NOT CONTENDING I'LL
COME TO A SEK STAGE OF THIS BUT I AM KNOW THE ^ CON ^ CONNECTICUT SENDING THAT
IN ANY WAY THAT COUNSEL SHOULD BE PRESENT FOR THAT, OR THAT THE DEFENDANT
SHOULD BE PRESENT THAT IS NOT A CRITICAL STAGE THAT CAN BE ACCEPTED BECAUSE BUT
YOU KNOW NOT EVERY DOCTORS NOTICE THE SAME NOT EVERY EXCUSE IS THE SAME
AND WHEN THERE IS DOUBT, YOUR HONOR, WHAT I WOULD SAY IS THAT IN THAT CASE THE
MATTER SHOULD GO BEFORE THE COURT. CHIEF JUSTICE RABNER:
MR. LOSE BURGLARY ARE YOU SANS IS AN ADVANCING THAT SUGGESTION AS A POLICY
SUGGESTION OR AS SOMETHING THAT'S COULDN'T SUBSTITUTIONLY REQUIRED? DOES THE CLOSE
QUESTION CREATE A CRITICAL STAGE OR ARE YOU JUST OFFERING THIS AS THUT AN
THUL ADVICE FOR HOW THINGS SHOULD PROBE. LAWRENCE S. LUSTBERG:
I AM HAEP IF ANYBODY'S LISTENS TO MY THOUGHT VULG ADVICE BUT NO I BELIEVE
THAT BECAUSE WE ALL KNOW THAT THESE QUESTIONS COME UP, CHEEFR, IN THE CONTEXT OF
VOIR DIRE, WHICH IS A CRITICAL PHASE, THERE SHOULD NOT BE AN EVEN END RUN
AROUND THAT PROCESS THAT IS AS A MATTER OF COULDN'T DISTRIBUTIONAL LAW WE CAN'T
TAKE THINGS THAT OUGHT TO HAVE BEEN PRESENTED TO THE COURT.
JUSTICE ALBIN: IT IS NOT AN END RUN IT MAY VERY WELL BE WHEN THE VENIRE GENERAL
VENIRE IS BEING SLEK SOMEONE DOESN'T MENTION THEIR VACATION, NOW THEY ARE
IN THE BOX, OKAY, AND THEY ARE ASKED THE QUESTION ARE YOU GOING TO HAVE PROBLEMS
SOIFRLG ON THIS JURY? WELL, I'M GOING TO DISNEY WORLD IN A WEEK. THAT'S NOT
AN ENDS RUN. THATS' JUST IT COMES UP IN A DIFFERENT POINT.
LAWRENCE S. LUSTBERG: THAT YOU ARE RIGHT THAT IS NOT AN END RUN BUT THERE CAN BE
I DON'T MEAN TO MAKE TO USE THE TOINL END RUN IN A DIFFICULTIES PARJING FAX
BUT THERE WILL BE TERMS TIMES WHEN SOMEBODY WILL SAY THE MAKES WE'LL MAKE A PRESENTATION
AS TO A MEDICAL CONDITION OR EVEN A VACATION PLAN THAT JURY MANAGERS ARE
JUST GOING TO ACCEPT BECAUSE IT IS THE EASY WAY TO DO IT AS OPPOSED TO.
JUSTICE PATTERSON: LOW GIST LIKS TI IN TIME WILL GO IN IMMINENCE TO OF TIME
ING HOW CAN IN FOBL REPLY BE BECAUSE THAT CALL THAT COMMUNICATION FROM THE
PROSPECTIVE JUROR WHO'S GOTTEN A NOTICE WEEKS IN ADVANCE OF THE SERVICE MAY HAVE
HAPPENED ON JUNE 29TH AND THE ACTUAL TRIAL DATES MAY ACTUALLY BE FOR. LATER JUST
A MRO FROM NOW OR WHATEVER. AND TO MAKE THE DECISION THE JURY MANAGER WOULD THEN
HAVE TO TRY TO FIGURE OUT WHO'S ACTUALLY GOING TO TRIAL OF ALL OF THE LAWYERS
WHO ARE POTENTIALLY ON THE CALENDAR AN AND ALL OF THE CASES AND THEN MAKE AN EVENT
IN THOSE CASES MAKE IT INTO AN EVENT IN THOSE CASES. LAWRENCE S.
LUSTBERG: I AM REALLY I AM NOT MAKING MYSELF CLEAR I'M FRUSTRATED BOO I MY OWN
INABILITY TO MAKE THIS CLEAR BECAUSE I AM NOT SAYING THAT ATSZ ALL. WHAT
I AM SAYING IS THAT THERE TIMES SOMEBODY KONLS BEFORE THE NL MANAGER AND SAYS I HAVE
AN ILLNESS, I HAVE I HAVE I'M PHYSICALLY INCAPABLE I HAVE A PROBLEM IN MY
FAMILY WHATEVER IT IS, THAT EXCUSE MAYBE VERY VALID OR IT MAYBE QUESTIONABLE.
JUSTICE FERNANDEZ-VINA: MR. LOSE BRURG IF I MAY YOU INDICATED
A FEW SECONDS AGO THAT MANAGERS TAKE THE IS SEE SITE OUT BY A COLOR OF LAWING PEOPLE
DO YOU HAVE ANY AN I SAT A -- A SIGN NL JUDGE JNL MANYER MY JJER DID NOT
LET ANY KNOWLEDGE OELTS BECAUSE IT WAS EASY I DON'T KNOW IF NUF ANY ACTUAL PROOF
OF THAT. LAWRENCE S. LUSTBERG: I DON'T BUT HEIRS HE WHAT
I REALLY ACKNOWLEDGE THIS IS REALLY THE SEK FOINT I WAS GOING TO GET TO AND IN
SOME WAYS IS THE MOST CRITICAL PART OF THIS WHAT WE KNOW NOW KNOW IS THAT
THE ROLE THAT THE NL MANAGER PLACE IS ONE THAT AFFECTS THE VOIR DIRE THAT COMES
LATER AND THAT VOIR DIRE IS A CRITICAL STAGE. AND SO WHAT HAS TO HAPPEN WHAT
DID NOT HAPPEN HERE AND WHAT PREVENT ME FROM HAVING THE VERY INFORMATION THAT YOU'RE
ASKING ME ABOUT IS THAT THESE EXCUSES ARE NOT READILY DOCUMENTED AND UNDER
2 B 20- 9 THEY ARE SUPPOSED TO BE. THE WAY JURY MANAGERS DECIDE ON REQUESTS FOR
EXCUSE ALS AND REQUESTS FOR DEFRLS, THIS COURT SHOULD BE CLEAR SHOULD BE
DOCUMENTED SO THAT THEY CAN BE PART OF ANY MEANINGFUL JUDICIAL VUCH SO THAT A
DEFENDANT CAN REALLY MAKE THE ARTHD AS TO WHETHER THEY WERE DENIED THEIR RIGHT TO BE
PRESENT WHEN THEY SHOULD HAVE BEEN ABLE TO BE PRESENT AND BY THE WAY.
JUSTICE LAVECCHIA: HOW DO THEY DOO THAT THE PERSON HAS SKBSED HOW DO YOU
TRACE THAT DEFERRED OR EXCUSED PERSON BACK TO THE TRIAL OF THE DEFENDANT WHO
WANTS TO LATER RAISE THAT ARGUMENT LOILS. LAWRENCE S. LUSTBERG: YOU
DON'T. JUSTICE LAVECCHIA: IT SOUJD TO ME LIKE WHAT YOUR ARLG
REAL LIE IS IS THAT YOU WANT TO HAVE US INTERPRET 2 B 20- 9' GOES LEGISLATE ITCH
AUTHORIZATION TO THE A J TO DESIGNATES SOMEBODY TO ASSIST IN THIS REVIEW
PROCESS IN A MORE LIMITED PHYSICIAN FASHION THAN WE HAVE IN ORDER TO REQUIRE MORE
DECISIONS NOT TO BE DECIDED BY THE DESIGNEE BUT TO BE REQUIRED TO GO TO THE
A J IS THAT REALLY WHAT YOU ARE SAYING. LAWRENCE S. LUSTBERG:
YES IN INSTANCES OF DOUBT THAT A J WHETHER WHERE THERE IS IN I QUESTION THERE
SHOULD BE A PRESUNL THAUN THAT THE MATTER GOES BEFORE A JUDGE NORTH APPROPRIATE
CASE. JUSTICE LAVECCHIA: YOU ARE LIMITED WHAT WOULD BE CONSIDERED
AN ADMINISTRATIVE PROCESSING MORE NARROWLY TO REQUIRE MORE THIRNGS BEING PUSHED
TO THE COURTROOM VOIR DIRE SETTING AND THEREFORE CLEARLY BEING THE CRITICAL
STAGE. LAWRENCE S. LUSTBERG: THAT'S CORRECT. JUSTICE
LAVECCHIA: OKAY. JUSTICE PATTERSON: THAT IS THE APPROPRIATE
CASE I AM I AM SORRY SOMEBODY REPET PIF ABOUT THIS BUT WHAT IS THE APPROPRIATE
CASE FOR AN EXCUSE THAT US REQUESTED TODAY WHEN AUGUST IS NOT A GOOD EXAMPLE
BUT WHEN IN SEPTEMBER THERE MAYBE HUNDREDS OF TRIALS OR THERE MAYBE NO TRIALS.
LAWRENCE S. LUSTBERG: LOIK I UNDERSTAND SO I GET SO I GET
A JURY NOTICE TODAY, I GET A DOCTOR'S NOELT THAT SAYS I HAVE DIABETES WHICH I DO,
AND NOW THAT SHOULD NOT FWEE A BASIS TO EXCUSE ME BUT THE JURY MANAGER SO
THE JURY MANAGER CAN DECIDE RIGHT THEN AND THERE REGARDLESS OF OF WHAT CASE IT IS
WHETHER I'M EXECUTIONED OR NOT WHAT I'M SAYING IS IN THOSE CASES WHERE THERE
IS NOT AN APPROPRIATE SHOWING WHAT THE JURY MANAGER SHOULD DO IS SAY YOU KNOW WHAT?
YOU ARE GOING TO HAVE TO SHOW UP GO BEFORE THE JUDGE AND MAKE YOUR EXCUSE.
AT THAT POINT THERE WILL BE A REAL TRIAL, ON A REAL DATE, WITH A REAL DEFENDANT,
AND THAT MATTER CAN BE DECIDED FRM IT IS NOT HYPOTHETICAL.
JUSTICE FERNANDEZ-VINA: THAT KWLO TAKE THE SIGN IT MENT JUDGMENT OUT OF THE LOOT
#789S YOU WANT A HEARING ORN IT SO. LAWRENCE S. LUSTBERG:
NO NO NO. JUSTICE FERNANDEZ-VINA: YOU SFEK A HEARING
IN FRONT OF THE ASSIGNMENT JUDGE. LAWRENCE S. LUSTBERG: ABSOLUTELY
LY NOT THIS IS NOT A MATTER OF HAVING ANY KIECH HEARING IT IS A MATTER OF
OF GATHERING DATA LOOK WHAT THIS COURT DOES FOR A LIFRG IS IT VUFRS DECISIONS OF
LOWER COURTS AND AGENCIES THAT DETERMINE WHETHER AND DETERMINES WHETHER THOSE
DECISIONS ARE PROPER. JUSTICE FERNANDEZ-VINA: WHEN WOULD YOU
OBJECT AT THAT POINT BECAUSE IF THE SCIENCE MENT JUDGE SAUS NO HEARING THE SIENLT
NLTD DECIDES ILTS A VALID EXCUSE AFTER THE TRIAL YOU GOOD IT TO REVIEW AND THEN
OBJECT TO THE. LAWRENCE S. LUSTBERG: UNDER THE RULE WHAT
THE DEFENDANT COULD OBJECT TO THE ^ CON ^ CONNECTICUT STRUCK OF THE CONVENIENT
INNER AND ASK FOR DATA. JUSTICE FERNANDEZ-VINA: THEY WONTS BE
THERE ON THE VENIRE IF THE SIENLT JUDGE EXCUSED THEN BEFORE YOUR TRIAL.
LAWRENCE S. LUSTBERG: WHAT I AM SUGGESTING IS THAT THAT DATA BE MADE
AVAILABLE AT THAT POINT NOT ONLY DEM GRAFSHG DATE AN WHICH OTHERS HAVE
ADDRESSED BUT THE REASONS FOR THE DECISION BY THE JURY MANAGER.
JUSTICE ALBIN: THE STATUTE PROVIDES 2 B 20- 9 B RECORDS SHALL BE KEPT OF ALL REQUESTS
FOR EXCUSES AND DID HE FERLS AND OF THE GRANTING OF EXCUSES AND DID HE FERLS
CORRECT. LAWRENCE S. LUSTBERG: CORRECT AND I DON'T KNOW
WHETHER THAT'S TYPICALLY DONE WHAT I DO KNOW IS FROM THE RECORD OF THIS CASE THAT
IT WAS NOT DONE HERE AND IT LEADS ME TO AT LEAST SUSPECTED THAT THAT DOES NOT
HAPPEN REGULARLY AND THAT THOSE RECORDS ARE NOT BEING MADE AVAILABLE TO DEFENDANTS
IN SKWENTS CRIMINAL CASES AND WHAT INL SUGGESTING IS THAT WHAT SHOULD OCCUR.
CHIEF JUSTICE RABNER: I THOUGHT YOU WERE DONE INL AFRAID WE
NEED TO CUT SHORT THE ARGUMENT WITH OTHER ADVOCATES LINED UP BEHIND YOU THANK YOU
VERY MUCH. LAWRENCE S. LUSTBERG: I JUDGE US WANT TO SAY
ONE QUICK THING IF I MIGHT. I DID MENTION AND I PRONSED THIS IS GOING TO BE IMMINENT
1 MINUTE. LAWRENCE S. LUSTBERG: IT HAS NOTHING TO DO
REQUEST THIS CASE I HAVE TO SAY SOMETHING ABOUT JUSTICE LAVECCHIA AS WELL YOU KNOW
AULTD JUSTICES SPOKE AND IT WHAT GOES WUNDZ FULL TO LISTEN TO FROM THE PER
EXPECT TICH OF AN ADD VOEK E SPEAKING SLEEGS ONE WHO HAS APPEARED BEFORE HER SO MANY
TIMES I JUST WANTED TO EXPRESS OUR CONGRATULATIONS TO HER ON AN EXPECT TACK
YOU LAR CAREER AND ON THAT NEXT PHASE SHE HAS DISTINCTION WISHGD THIS COURT WITH
HER DOWN TO EARTH BRIL YANS, HER RIGOROUS ATTENTION TO JUSTICE BUT TEMPERED
BY HUMANITY AND BY THE FACT THAT SHE'S INCREDIBLY HARD WORKING BUT ALSO HAS A FRART
SENSE OF HUM MOR IT HAS BEEN MY HONOR AS TO HAVE APPEARED BEFORE HER THIS
MANY TIMES I AM SO HAEP TO BE HERE ON THIS LAST DAY AND I JUST FELT YOUR HONOR
THAT I WOULD BE REMISS IN I DIDN'T SAY IN A BEFORE I SAT DOWN TODAY SO THANK
YOU. CHIEF JUSTICE RABNER: I KNOW THAT OTHERS MAY WANT TO DO
EXACTLY THAT SO I AM GOING TO ASSUME FOR THE RECORD THAT YOU ALL AGREE WITH WHAT
JUSTICE -- WITH WHAT WAS JUST SAID ABOUT THE JUSTICE. THANK YOU. LOIGS
THANK YOU. CHIEF JUSTICE RABNER: MISS KING MAN.
MARISSA K. KINGMAN: MAY IT PLEASE THE COURT I LIKE THE PUBLIC DEFENDER SOMEWHAT
AT A DWIS ADVANTAGE BECAUSE I HAD POLAND TO ONLY ARGUE ABOUT THE FUNDAMENTAL
AL STRUCTURAL ERROR THAT OCCURRED BELOW UFRMENT YOU ARE WELCOME THAN I MEAN THIS
SERIOUSLY TO REST ON YOUR PAPERS WE HAVE THEM WE HAVE REVIEWED THEM PLEASE
DO NOT FEEL YOU INTO ED TO FILL UP FIVE OR TEFRN NINS WITH ARTHD THAT UCH NOT PRESENTED
IN YOUR BRIEF YOU WILL NOT AT ALL BE CHASTISED FOR THAT IN ANY WAY.
MARISSA K. KINGMAN: THANK YOU COLLECTIVE IF I COULD JUST MAKE ONE POINT THAT
IS NOT IN MY PAPERS BECAUSE IT COULD NOT HAVE BEEN KNOWN AT THAT TIME AND IT
SHOULD TAKE LESS THAN A MINUTE SGLIEN AND THEN I WILL REST. CHIEF
JUSTICE RABNER: GO AHEAD. MARISSA K. KINGMAN: I JUSZ WHAT P TO
DISCUSS THE EFRL LUGS OF THE PART PAGSZ OF THE ATTORNEY GENERAL AND THE
ADMINISTER THE OF OFFICE OF THE COURTS IN THIS MATTER IFRLT WE ARE NOT TOUCHING
THAT ISSUE I AM SORRY. MARISSA K. KINGMAN: IT WOULD TAKE
LESS THAN 30 SECONDS. CHIEF JUSTICE RABNER: WE ARE NOT
DISCUSSING THAT ISSUE IN ORAL ARGUMENT AS LAID OUT AT THE OUTSET WE HAVE YOUR SMIRGS
ON THAT THANK YOU. MARISSA K. KINGMAN: THANK YOU CHIEF.
CHIEF JUSTICE RABNER: MS. CHAS MER. JAIMEE M. CHASMER: GOOD MORNING
YOUR HONOR MAY IT PLEASE THE COURT. I DO HAVE A PREPARED PRELIMINARY STATEMENT
HOWEVER I WOULD LIKE TO JUST START WITH A REACTION TO DEFENSE KOUNSS PRESENTATION
THIS MORNING. THIS COURT HAS STATED THROUGHOUT THE
PANDEMIC THAT A GENERALIZED FEAR OF CONTRACTING THE COVID-19 VIRUS IS INSUFFICIENT
TO GAIN RELIEF. AND I WOULD ARGUE THAT IN THIS SENSE IT'S ALSO INSUFFICIENT TO
GAIN THE RELIEF OF GETTING OUT OF RJ DUTY. THE COVID-19 QUESTIONNAIRE WAS NOT
GAUGEED AT ASSESSING POTENTIAL JURORS REACTIONS TO SERVING ON A JURY DURING
THE PANDEMIC, IT WAS REALLY GAUGEED TO ASSESS WHO HAD BEEN EXPOSED IN THAT JURY
POOL TO COVID AND EVENTUALLY WHO WOULD BE EXCUSED BECAUSE OF THAT EXPOSURE AND
THE STALT WOULD SMILT THAT THAT WOULD BE A DOCUMENTED MEDICAL INABILITY
TO SERVE WHICH JURY MANAGERS ARE CERTAINLY ABLE TO EXCUSE THOSE JURORS UNDER THEIR
STATUTORY AUTHORITY. THIS COURT HAS ALSO ACKNOWLEDGEED THAT
AS LIFE A MRID THE K COVID-19 PACK GOES ON THE VINL JUSTICE SYSTEM CANNOT
STAND STILL THIS CASE ILLUSTRATES OUR A BILL TO ACTUALLY MOVE FORWARD DURING THE
PANDEMIC. USING MODERN TECHNOLOGY TO GUARANTEE DEFENDANTS CONSTITUTIONAL
RIGHTS WHILE INSURING THE SAFETY OF ALL PARTICIPANTS INCLUDING THE OVER 1 HUNDRED
BERGEN COUNTY RESIDENTS WHO WERE ORDERED TO APPEAR FOR RNL DUTY IN THIS
CASE. IT'S IMPORTANT TO REMEMBER THAT AT THE TIME OF
DEFENDANT'S TRIAL OUR STATE WAS EXPERIENCING AN UP PARTICULAR IN CASES OF THE HIGHLY
TRANS MISS IBL ANG ALL TOO OFTEN DEADLY COVID-19 VIRUS. AND WE KNOW THAT
BECAUSE OUR COURTS JURY TRIALS WERE SUSPENDED AGAIN MERE WEEKS AFTER DEFENDANT'S
CONVICTION IN THIS CASE. BUT DESPITE THE CONDITIONS OUTSIDE OF THE
COURTHOUSE, IN SEPTEMBER AND OCTOBER OF 2020, DEFENDANT WAS ABLE TO
SUCCESSFULLY SECURE A JURY BY WHICH HE WAS TRIED IN PERSON AND CONVICTED. THE HYBRID
JURY SELECTION PROCEDURE PROVED TO BE AN EFFICIENT AND EFFECTIVE WAY TO
PICK A JURY A MID- A PANDEMIC. VIA ZOOM THE TRIAL COURT KUKD PROBING AND
COMPREHENSIVE VOIR DIRE OF 178 POTENTIAL JURORS. OVER A PERIOD OF OF 3 AND A
HALF DAYS. 63 INDIVIDUALS WERE REQUIRED TO REPORT IN PERSON AFTER THE ORIGINAL
FADES THAT MEANT 115 INDIVIDUALS POTENTIAL JURORS WERE EXCUSED WITHOUT EVER
HAVING TO WALK INTO THE COURTHOUSE. AS COMMUNITY MEMBERS WE'VE ALL BEEN CALLED
UPON TO STAY HOME AND SOCIAL DIFFICULTIES SFANS TO SLOW THE SFREED OF THE VIRUS.
BY CONDUCTING THE INITIAL PHASE ON ZOOM, WE AVOIDED THE USUAL GATHERING OF DOZENS
IF NOT HUNDREDS OF POTENTIAL JURORS IN A SINGLE COURTROOM FOR THAT FIRST
INITIAL PHASE OF VOIR DIRE. THE STATE SUBMITS THAT THE DEFENDANT
HAS ESTABLISHING NO GROUNDS HERE TODAY FOR RELIEF BASED ON THE USE OF THE
HYBRID VIRTUAL PROCEDURE. HIS ARGUMENTS ARE BEING MADE FOR THE FIRST TIMING BEFORE
THIS COURT AND CAN BE DISMISSED ON THAT GROUND ALONE.
ADDITIONALLY THE DEFENSES' ARGUES ARE REALLY AIMED ALT THE ORDINARY JURY SELECTION
PROERS. NONE OF THOSE PROERS WERE ALTERED IN A SUBSTANTIVE WAY BY THIS
COURT'S JULY 22ND ORDER. AND THE DEFENSE DOESN'T CHALLENGE ANY OF THE NEW PROERS
ASIDE FROM THE QUESTIONNAIRE THAT WAS ORDERED IN RESPONSE TO THE COVID-19
PANDEMIC. SO THE STATE MAINTAINS THAT THE DEFENSE REALLY
HASN'T PRESENTED THAT VERY NARROW ISSUE THAT THIS COURT GREEDZ TO REVIEW.
AS FOR THE SUBSTANTIVE DEFENDANT'S CLAIM, HE HAS THE BURDEN TO ESTABLISH A
FATAL FLAW IN THE NEW PROCEDURE AND BECAUSE HIS CLAIMS ARE UNTIMELY, HE MUST
DO SO BY SLOWING ACTUAL PREJUDICE. THE DEFENSE WAS UNABLE TO SHOW ACTUAL PREJUDICE
BEFORE THE TRIAL COURT AS TRIAL COUNSEL CONCEDED, THE JURY SELECTION PROCESS
IN THIS CASE ALTHOUGH IT KOIRTD VIRTUAL WAS ABSOLUTELYLY FAIR. AND
HERE THE DEFENSE HAS ALSO FAIL TO MAKE THAT SHOWING. HE HAS OFFERED ONLY
SPECULATION AND SUPPOSITION TO SUPPORT HIS CLAIMS. WITH RESPECT TO THE
CROSS-SECTION CLAIM AND I KNOW WE REALLY DIDN'T GET INTO IT IN TOO MUCH DETAIL TODAY,
I WILL JUST SAY THAT IT'S A PROPERTY UKS OF GUESS WORK ABOUT THE EFFECT OF THE
PANDEMIC ON THE RATE OF THE JUROR TURN OUT OF BLAKS HISPANICS AND FEMALES.
THE STATS KICKS THAT THE DEFENDANT THAT DEFENSE OFFICE THIS COURT ARE
NOT TIED TO BERGEN COUNTY AND THEY ARE CERTAINLY NOT TIED TO THE JURY VENIRE THAT
SHOWED UP FOR DEFENDANT'S CASE. ADDITIONALLY THE STATS KICKS
DO NOT #2340G TO UNDER FLIEN THE PRESUNLTS THAT THE VENIRE WAS DRAWN IN A
COPS SUBSTITUTIONLY PERMISSIBLE WAY THE RECORD ESTABLISHES THAT BERGEN COUNTY JURY
MANAGER FOLLOWED OUR STATES ORDINARY PROERS IN PRODUCING THAT ARRAY. THE
PROCEDURE THAT PROCEDURE INCLUDES THE RANDOM SELECTION OF JURORS FROM A NEUTRAL
SOURCE LIST. THERE REALLY IS NO OPPORTUNITY FOR DISCRIMINATION OF THE
INDIVIDUAL DISCRIMINATION OF ONE JURY MANAGER USING THAT NEUTRAL PROCEDURE. AND
ALTHOUGH WE ARE NOT ADDRESSING IT TODAY THE STATE SMILTS THAT BECAUSE OF THAT
NEUTRAL PROCEDURE THE SUDDEN CALL FO COLLECT DEM GRAFSHG DATA IS UNWARRANTED.
ADDITIONALLY DEM GRAFSHG DATA SNOOT NEEDED IN DID IS CONTACTS AN I
HAVE ALREADY SFATED TO EVALUATE WHETHER THE PROCEDURE WAS COULDN'T DISTRIBUTION
AL AS THE TRIAL COURT FOUND THE JURY ARRAY WAS REPRESENTATIVE AND HE NOTED
THAT ANY OBJECTION BASED ON THE RACIAL DEMOGRAPHICS OF THE PANEL THAT SHOWED UP
TO COURT VIRTUALLY WOULD HAVE BEEN MERIT LESS OF OF COURSE TRIAL COUNSEL
MADE NO SUCH OBJECTION. ADDITIONALLY, THE STATE SUBMITS THAT THE
POINT IN WHICH JURY MANAGEMENT EXCUSES AND DID HE FERS JRS ACCORDING TO STATUTORY
AUTHORITY THAT IS NOT A CRITICAL STAGE. IT IS AN ADMINISTRATIVE PROCESS THAT
OCCURS BEFORE ANY POTENTIAL JURIST REQUIRED TO SHOW UP TO COURT. AND BEFORE
ANY SPECIFIC JUROR, IS ASSIGNED TO A PANEL, MEANING CRIMINAL OR CIVIL, OR A
SPECIFIC DEFENDANT'S CASE. SO A DEFENDANT OR THEIR ATTORNEYS' PRESENCE ALT
THIS STRAJ WOULD BE OF LITTLE USE. WHETHER AN INDIVIDUAL MEETS THE CRITERIA THE
STATUTORY CRITERIA TO BE EXCUSED OR DEFERRED DOES NOT NEED TO BE
LITIGATED. AND AGAIN, ASSIGNMENT JUDGES AND THEIR DECEMBER IGS NIECE RS STATUTORY
LIE AUTHORIZE TO MAKE THESE MINISTERIAL DECISIONS ON THEIR OWN.
ADDITIONALLY DURING A PACK CONDUCTING EXCUSE ALS AND DEFRLS IN COURT WITH THE
PARTIES PRESENT WOULD BE LOGISTICALLY BURDENSOME OF COURSE OUR INTERACTION
WITH THE PUBLIC IS STILL LIMITED AND WILL LIKELY BE SO FOR A LONG TIME DURING THIS
PACK. PANDEMIC. AND WHILE OUR STATE HAS YET TO CONFRONT THE ISSUE OF WHETHER
THIS IS A CRITICAL STAGE, OTHER JURISDICTIONS HAVE HAD LITTLE PROBLEM
REJECTING THAT CLAIM. AS NOTED IN OUR BRIEF AS WELL AS THE ATTORNEY GENERAL'
S AND THE COUNTY PROSECUTORS A SOESHG, A NEW JERSEY OF FEDERAL COURTS IN OTHER STATES
HAVE HAD LITTLE TROUBLE IN FINDING THAT THE RIGHT TO BE PRESENT AND THE
RIGHT TO BE REPRESENTED AT THAT STAGE DOES NOT EXIST. IN SUM THE DEFENSE HAS SNOLT
ESTABLISHED A FAULT IN THE NEW PROCEDURE AND TO THE CONTRARY THIS CASE ACTUALLY
PROVES THAT THE PROCESS IS VAL USHL IN MOVING THE KRIMG JUSTICE SYSTEM FORWARD
AS THIS PANDEMIC CONTINUES TO LINKER. THAT CONCLUDES MY PREPARED
STATEMENT. AND I WELCOME ANY QUESTIONS FROM THE COURT. CHIEF
JUSTICE RABNER: QUESTIONS ANY KNOWLEDGE? INITIAL YOU WOULD
LIKE TO ADD. A. NO CHLTD. CHIEF JUSTICE RABNER: THANK YOU
FRNTHS THANK YOU. CHIEF JUSTICE RABNER: MS. LETTER.
LEONARD. LILA B. LEONARD: GOOD MORNING YOUR HONORS MATD PLEASE
THE COURT. THE DEFENDANT HAS FAILED TO ESTABLISH A PRIMA FACIE
CASE CHALLENGEING THE JURY SELECTION PROCESS HERE. THAT IS HIS BURDEN. AND ALL
INDICATIONS ARE THAT THERE QUESTIONER NO DEFECTS IN THE PROCESS AS HAS BEEN
NOTED TODAY. THE TRIAL JUDGE NOTED THAT THE THERE WOULDN'T HAVE BEEN A BASIS FOR
ANY OBJECTION AND STATED THAT THE HYBRID PROCESS IMPLEMENTED BY THIS COURT
WAS LIKELY GOING TO BE A CITY OF NEWARK. AND THE PROSECUTOR NOTED THAT THEY COULD
SEE JURORS OF ALL BACKGROUNDS BOTH JEND ERS ALL SOESH YOESH NICK BACK RUNDZ
ALL AGES SO THE IDEA THAT THE THERE WAS NOT ACROSS SECTION OF THE COMMUNITY REPRESENTED
IN THIS CASE IS NOT BASED IN REALITY. AND WE SHG ALSO KNOW
THAT THE NL YIELD WAS ROUGHLY THE SAME IN THIS CASE AS IT WOULD HAVE BEEN IN
OTHER CASES. THIS CASE IS UNIQUE BECAUSE IT WAS A PILE LOT CASE SO IT HAPPEN TO BE
THE ONLY TRIAL FOR WHICH A JURY WAS BEING SLEK AT THAT TIME BUT AS YOUR HONORS
HAIFR NOTED THE PRACTICAL DIFFICULTIES WITH IN INVOLVING ANY PARTY IN THESE
MINISTERIAL QUESTIONS IT WOULDN'T BE IT WOULDN'T BE FEES IBLT PREPANDEMIC OR
EVEN AS WE SEE THIS PROCESS CONTINUE IN THE FORESEEABLE FUTURE WITH THE VIRTUAL SELECTION PRESUMABLY THERE WILL BE SEVERAL VIRTUAL JURIES SELECTED AT A TIME AND
THEY HAVE A CHILD WITH DISABILITIES OR A VACATION AND CERTAINLY NOT IN SOMEBODY
HAS ANY CONCERNS ABOUT COVID-19 CONCERNS LIKE SPECIFIC CONCERNS NOT THE
GENERAL LIESED ABOUT YOU THAT'S NOT SOMETHING THAT I WOULD SUSPECT THAT MOST JUDGES
WOULD WEIGH ON THE AIR ON THE SIDE OF CAUTION WITH THAT TAKE PEOPLE AT THEIR
WORD IF THEY SAY THEY HAVE SYMPTOMS. AND SO THAT'S NOT SOMETHING A PARTY COULD
REALLY WLA IN ON THERE. AND JUST BECAUSE THE QUESTION IS ASKED
GENG DURING THE JURY DURING VOIR DIRE ABOUT REASONS SOMEBODY MAY NOT BE
ABLE TO SIT FOR A PARTICULAR AMOUNT OF TIME DOESN'T MEAN THAT THAT QUESTION BEING
ASKED ON THE QUESTIONNAIRE IS SOMEHOW A CONSTITUTIONAL TRIGGER. IT'S ASKED
AGAIN AS A PRACTICAL MATTER BUT THAT DOESN'T MAKE IT A CRITICAL STAGE.
AND I JUST SUBMIT THAT THESE COVID-19 CONSEQUENCE ARE COMPLEELTLY COMMON MRAGS
TO GO INTO BUSINESSS, SCHOOLS, DOCTORS APPOINTMENT WE SEE THEM ALL THE TIME
NOW ANG IT'S JUST A MATTER OF PRECAUTION WHICH IS HOPEFULLY TEMPORARY.
AND FINALLY, IF YOUR HONORS DO HAVE ANY CONCERNS ABOUT THE ALLEGED CONFLICT WITH
OUR OFFICE I AM HAEP TO ADDRESS THEM BUT OTHERWISE I WILL REST ON MY BRIEF
UNLESS YOUR HONORS HAVE ANY QUESTIONS. CHIEF JUSTICE RABNER: QUESTIONS?
THANK YOU MS. LEONARD. JAIMEE M. CHASMER: THANK YOU.
CHIEF JUSTICE RABNER: MISS SHA SURE AN. LINDA A. SHASHOUA:
WEIGHT MAY IT PLEASE THE COURSE I HAVE ONE STAGE ALT THIS PINT READINGS THE TENOR
OF THE COURT THAT THE CPA N.J. JUST ASKS THIS KOIRT TO DECLINE THE VILT TAGS TO
MAKE THIS A CRITICAL STAGE. THIS IS SUPPORTSED BY THE A BE A THIS PROCESS
OF HAVING THE JURY MANAGEMENT ADDRESS NONE SUBSTANTIVE PARTS OF ASK YOU ALS AND
DEFER RALS THE ONLY CONCERN CONSTITUTIONALLY IS WHETHER IT WOULD TOUCH ON
THE SUBSTANCE OF THE CASE AND NOTHING THAT WOULD CERTIFIED BY THE JURY MANAGEMENT
STAFF NOTHING THAT GOES ON IN THOSE PROEGS TOUCHES ON THE DEFENDANT'S ABILITY TO
DEFEND HIS OR PRESENT A DEFENSE IN HIS CASE. IN TERMS OF WHAT
HAS BEEN CHANGED SINCE THE PANDEMIC IN THESE PROERS, THERE IS NOTHING SUBSTANTIVE
THAT WAS CHANGED PREFROM PREPANDEMIC TO POST PANDEMIC. OTHER THAN THE
DIFFICULTIES ABLE OF THE SELF DEFRL OPTION WHICH MY LAST POINT IS IF ANYONE IS NEEDED
TO SEEK AN EXTENSION BEFORE S JUDGE MA SHAN- YOU UNDERSTAND YOU WOULD JUST
GET THE BRIEF IN SELF DID HE FERLS BY I THINK THE POST PANDEMIC IS PROBABLY LESS
ENDS THE VOLUME OF PEOPLE SEEKING DID HE FERLS BECAUSE THEY HAD TO GO BEFORE
SOMEBODY IN PERSON AS OPPOSED TO DOING IT THEMSELVES. SO IF ANYTHING, AS THE AOC
RECOGNIZED IN THIS CASE, THIS WAS A MATTER OF PROBABLY LESS EVENING THE
DEFRLS THAT OCCURRED HERE. WE'D ASK THIS COURT OTHER THAN THAT TO REST ON OUR
BRIEF. CHIEF JUSTICE RABNER: THANK YOU. LINDA A.
SHASHOUA: TLLS UNLESS TLSH ANY QUESTIONS. Q. THANK YOU MR. NEAR
REYOU ASKED FOR FWOO BLINS IN REBUT IT ISAL? BRIAN J. NEARY:
PLEASE JUDGE I HAVE FWOO POINTS FO MAKE FOINLT NEW JERSEY ONE IF YOU LOOK AT 2
B 20- 9 SUB SEK BMENT SPECIFICALLY SAYS THE ASSIGNMENT JUDGE NJAA REQUIRE
VERIFICATION OF ANY FACT SUPPORTING THE GROUNDS FOR REQUEST OF OR FOR EXCUSE OR
DEFRL. RECORDS SHALL BE KEPT OF ALL REQUESTS FOR EXCUSES AND DENIALS AND
FOR THE GRANTING OF THE EXCUSES AND DENIALS. SECONDLY, MY
TASK AND MY FOCUS IS SINGULAR. I REPRESENT ONE MAN. I REPRESENT MR. DANGCIL.
WE HAVE USED THE TERM PILE LOT CASE. WE HAVE USED THE TIME TEST CASE THAT'S
OFTEN DISCUSSED IN THE POWER POINT. WHAT I AM SUGGESTING IS THAT THERE WAS NO
ABILITY TO SEE WHAT THESE 326 PEOPLE WHY THEY WERE EXCUSED FROM SERVICE
BY THE JURY MANAGEMENT. WE WERE DENIED PARTICIPATION AT THE CRITICAL STAGE TO BE
ABLE TO DO THAT. NO LAWYER, NO DEFENDANT BEING PRESENT. I SUGGESTED THAT
AND IT'S DISCUSSED IN THE POWER POINT, THE TERM STRAIGHTFORWARD TRIAL. VERY HONESTLY
JUSTICES I HAVE NEVER TRIED A STRAIGHTFORWARD TRIAL.
JUSTICE ALBIN: MR. NEAR REMAY I ASK YOU ONE QUESTION DID YOU ASK FOR THE DOCUMENTS
THAT ARE SUPPOSED TO BE PRESERVED IN THE B SECTION OF THAT STATUTE? NEAR
NEAR NO TRIAL COUNSEL DID NOT ASK FOR THEM. JUSTICE ALBIN:
OKAY NOIGS I WOULD SERGEANT JUDGE MAYBE IT IS THE RESPONSIBILITY TO PRODUCE IT
I DON'T KNOW IF BEEN ANYBODY HAS EVER READ THAT QUESTION THAT CLOSELY HONESTLY
NAUS FAUS I I AN SLUR YOU WE HAVE MANY TIMES. JUSTICE ALBIN:
WHY YOU MENTIONED THE STATUTE IF THERE YAS NO REQUEST FOR THE RECORD.
BRIAN J. NEARY: IT'S THE QUESTION IS WHO IS IT IN KURM BENT UPON TO PRESERVE
THE RECORDS AND PRODUCE THEM. JUSTICE ALBIN: WELL, I WOULD
ASSUME THAT IF THERE ISN'T A REQUEST THERE ISN'T A PROBLEM. YOU TOLD ME
THAT DEFENSE COUNSEL DID NOT REQUEST. BRIAN J. NEARY: I DON'T THINK
ANYBODY IN THE FLURLY THAT LORNG EVER THOUGHT ABOUT I DON'T THINK ANYBODY
EVER LOOKED AT THE STATUTE HONESTLY JUDGE US TIS I DON'T THINK ANYBODY LOOKED AT
THE STATUTE. JUSTICE ALBIN: AND WHOSE FAULTD THAT?
BRIAN J. NEARY: IT'S I WILL GICH YOU ONE PERSON WHOSE FAULTD IT ISN'T IT IS NOT
MR. DANGCILS IT IS NOT MR. DANS. AND THAT'S THE FOCUS. I OPENED UP WITH
MY ARTHSD WITH REGARD TO NUMBERS. THERE IS ONE NUMBER THAT IN THE STRAIGHTFORWARD
TRIAL IN THIS FIRST TRIAL 18 YEARS THIS MAN GOT AN 18-YEAR SENTENCE AGS A
RESULTS OF THIS CASE. CHIECH THANK YOU. CHIEF JUSTICE RABNER: THANK YOU
MR. DANGS THANK YOU TO ALL COUNSEL VERY HEFRL BRIEFS THANK YOU FOR THE
ARGUMENT I AM GOING TO ADD A WORD FOR MISS INC. ASK NG FLORIDA UNFORTUNATELY YOUR
ARGUMENT WAS ECLIPSEED BY THE LIMENTDED NATURE OF THE GRANT AND THE ARGUMENTS
THAT THE DEFENDANT PROPOSED REST ASSURED WE WELCOME YOU BACK AND WE LOOK FORWARDS
TO HAERLG YOU ARGUE OON ANOTHER CASE FRNL THANK YOU