NJ top court orders new detention hearings for defendants with jury trials postponed by COVID-19

Chief justice rules that with courtrooms closed by pandemic for 11 months, ‘confinement may become punitive’
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Potentially thousands of defendants awaiting trial have the right to a new detention hearing because the state suspended jury trials due to COVID-19, the state Supreme Court ruled unanimously Thursday.

In response to a request by the ACLU of New Jersey and the state office of the public defender, the justices ruled that the continuing health dangers posed by the pandemic that have kept courtrooms closed for most of the past 11 months constitute a “change of circumstance.” Thus, it allows for reconsideration of detention decisions under the state’s Criminal Justice Reform (CJR)  law.

“If pretrial detention under a regulatory scheme is significantly prolonged, a defendant’s confinement may become punitive,” Chief Justice Stuart Rabner wrote in the opinion. “Individual defendants can apply to reopen detention hearings if they can present new information that was not known at the time of the initial hearing and that ‘has a material bearing’ on the release decision. We hold that the unexpected duration of the pandemic coupled with the continued suspension of jury trials, with no clear end date for either, constitutes new information.”

The criminal justice reforms that took effect in 2017 all but eliminated cash bail. Instead, a judge either releases an individual with one of several levels of monitoring, depending on the nature of the crime and perceived flight risk, or orders the defendant held pending trial. The law’s speedy trial provision also requires trials begin within six months for those who are being detained, barring “exceptional circumstances” that include a natural disaster, and that a person essentially cannot be held pretrial for more than two years.

COVID-19 halts jury trials

After COVID-19 exploded in the state last March, the judiciary closed the courts for in-person jury trials due to the health risks. About a dozen trials were held from September to mid-November when the court briefly reopened before shutting down in-person trials again as coronavirus cases were rising. As of Feb. 8, according to the Administrative Office of the Courts, more than 4,900 defendants were being held awaiting trial statewide.

The ACLU and public defender had sought a much broader remedy from the court: the release of all those accused of lesser criminal offenses who have been detained for at least six months and the reconsideration of detention for those accused of the most serious crimes, including murder, manslaughter and rape. Still, Alexander Shalom, ACLU-NJ’s director of Supreme Court advocacy, said he was pleased with the court’s decision.

“We’re gratified that the court recognized a desperate need to address the crisis in the criminal courts precipitated by the pandemic, in which people are forced to wait for trials in jail with no certainty of a timeline for having their cases heard,” Shalom said. “With this ruling, the court will ensure that people have some way to challenge their prolonged confinement in an unprecedented environment in which trials — the engine that propels the criminal system forward — have ground to a halt.”

The decision notes that those accused of the most serious offenses, which carry a presumption of pretrial detention, are not likely to be eligible for new hearings. Other defendants will be able to win release if they can “show a material change in the level of risk they present, in the context of the pandemic and the delays it has caused.” The public defender estimated that 650 of its clients charged with crimes of the second degree or lower had been detained for six months or more as of Dec. 4, 2020, along with 400 charged with first-degree offenses.

The justices set five criteria for judges to consider in determining continued detention:

  • the length of detention to date and the projected length of ongoing detention;
  • if a defendant has been or will be detained longer than the likely amount of time the person would spend in jail if convicted;
  • a plea offer;
  • whether a defendant’s health conditions present a greater risk of contracting COVID-19;
  • other relevant factors.

Rabner wrote that the judiciary will resume in-person jury trails “when conditions sufficiently improve.” In the interim, the health risks to those being held should be improving, with reduced infection rates in county jails and detainees in at least three county jails — Burlington, Hudson and Passaic — beginning to be vaccinated last month.