The New Jersey Supreme Court declined to order a new round of jury selection for a man whose pool excluded individuals with criminal convictions, even though former Gov. Phil Murphy restored ex-offenders’ ability to serve on juries only two days before selection began.
The high court unanimously ruled the case could continue without a new jury pool because the exclusion of nine jurors debarred because of their past criminal convictions did not deprive Walter Gilliano of his Sixth Amendment right to a jury made up of a representative cross-section of his community.
“The Executive Order reflects a policy determination by the Governor in the exercise of his authority to grant clemency,” Chief Justice Stuart Rabner wrote for a unanimous court, adding, “Exercising the power to forgive certain criminal penalties or relieve certain legal consequences of a conviction, however, does not establish constitutional requirements or constitutionally cognizable groups. The time-limited Executive Order here does not do so.”
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There was no indication Murphy intended to halt all criminal jury trials in the state for two months to allow jury selection to reset and capture all those whose rights he restored by commutation, the high court said in Tuesday’s ruling.
The conflict stems from a wave of clemencies Murphy issued about a week before leaving office. That order granted every person convicted of an indictable offense — what New Jersey calls felonies — limited clemency that permits them to serve on juries as long as they have finished their jail terms and were not on parole or probation.
Murphy’s order was issued two days before Gilliano’s trial for murder and gun charges was due to begin on Jan. 13. Just over 800 prospective jurors had been notified months earlier, and nine had told the court they could not participate because of disqualifying convictions.
The court declined to order the nine jurors be recalled, or a new jury pool be convened, after finding Gilliano could not establish that the excluded jurors satisfied a three-pronged test weighing whether someone’s disqualification violates the requirement that the makeup of juries reflect their communities.
Those jurors were not a constitutionally cognizable group because people convicted of felonies in other states or after the date of Murphy’s clemency order would remain ineligible to serve on juries, the justices found.
While outside groups that filed briefs in the case, known as friends of the court, had demonstrated there are racial disparities in New Jersey’s criminal justice system, they did not demonstrate that disparity extends to jury pools, the court said.
Ruling that individuals excluded from a jury pool when summonses are mailed must be included in the pool if they are eligible by the time jury selection begins could open the door to a wave of constitutional violations, the decision says.
“For example, defendants might argue that a constitutional violation can be found because individuals turned eighteen years old weeks or months after jury summonses had been sent,” the chief justice wrote.
The ruling adds that it would have been unreasonable for the court, having told the dismissed jurors they were excluded from jury selection, to then tell them to drop everything and return on short notice.
The court directed Gilliano’s trial continue with the same jury pool on Jan. 21. The decision issued Tuesday explains the thinking behind that ruling.
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