This Philly man was indicted by a virtual grand jury in N.J., a process criticized by defense lawyers, prosecutors

Eric Michael Carter, a Philadelphia man, was indicted last month on robbery charges by grand jurors in New Jersey.

In pre-coronavirus days, that process would have unfolded like this: As many as 23 jurors, chosen from registered voters, licensed drivers, and personal-income-tax filers, would have gathered in a closed courtroom to hear evidence, ask questions, and then discuss the case and decide whether a suspect should be charged.

But for Carter, accused in a Trenton robbery, the indictment came from jurors sitting, most likely, at home, in front of computer screens and watching the presentation of his case by a prosecutor. His lawyer, Mark Fury, said he believes that an in-person grand jury hearing his client’s case would have decided to not indict. He said his experience with Zoom conferences is that the “more people you have on the call, the fewer people talk.”

The use of virtual grand juries in state courts in New Jersey — a pilot program that started in Mercer and Bergen Counties in May — has garnered criticism from both criminal defense lawyers and county prosecutors. Carter, 23, is one of 55 defendants who have been indicted by virtual grand juries in the two counties.

The Association of Criminal Defense Lawyers of New Jersey this week said that it “roundly condemns” the use of virtual grand juries and contended that the New Jersey Administrative Office of the Courts “seemed to celebrate the WiFi indictments as trophies, totally ignoring the constitutionally unsound process utilized to achieve them.”

In a commentary this month in the New Jersey Law Journal, leaders of the association outlined reasons why they say the experiment should end. They contended that the virtual grand jury pool is limited to wealthy suburban residents with reliable broadband connections; the secrecy of the process, including the identities of witnesses, can’t be guaranteed when jurors are at home; and problems can arise with video “freezes” so that not everything may be heard.

The defense lawyers’ argument got support from an unlikely source: the County Prosecutors Association of New Jersey. In a statement supporting the defense lawyers’ position, it called the judiciary’s endeavor to impose virtual grand juries “a constitutional mistake.”

In New Jersey, grand juries are used in certain cases to see whether there is enough evidence to indict a suspect and move toward a trial. The grand jury, unlike a trial jury, does not determine whether a person is guilty.

Defendants and their lawyers are not present during grand jury proceedings, which occur in secret to protect witnesses, victims, and suspects.

The pandemic shut down courts in mid-March. Since then, in-person grand juries have resumed for federal courts in New Jersey and the Eastern District of Pennsylvania, and for the Pennsylvania Attorney General’s Office. Jurors convene in large-enough venues for social distancing and have face masks, spokespeople for those agencies say.

In Philadelphia’s city court system, grand juries have not yet reconvened, a spokesperson said.

The New Jersey Administrative Office of the Courts began its pilot program of virtual grand juries as a way to move stalled criminal cases forward. Pete McAleer, an office spokesperson, said Friday that it is considering expanding the program with the New Jersey Attorney General’s Office.

“We simply do not have the space to keep large numbers of grand jurors socially distanced throughout our facilities during this unprecedented health crisis,” he said by email. “If we could safely accommodate hundreds of grand jurors at courthouses throughout the state while tending to other emergent needs, we would do so. Even if a courthouse has a location large enough to accommodate a virtual grand jury, we must first prioritize the resumption of jury trials, which will demand a significant amount of space.”

Court staffers have delivered tablets with broadband access and web cameras to grand jurors who need them. Jurors were also provided headphones so no one else can listen in when they join the proceedings.

McAleer said three suspects whose cases went before virtual grand juries were not indicted on any charges, and in three other cases, jurors declined to indict on some charges. The number of panel members has ranged from 15 to 22.

Critics are not assuaged.

“We can’t operate a criminal justice system by WiFi. There are too many problems,” said Matthew Adams, lead coauthor of the New Jersey Law Journal commentary and an officer with the Association of Criminal Defense Lawyers of New Jersey.

He said that grand juries could resume in person with social-distancing guidelines, such as using private banquet spaces, but that it’s up to the court system to find and secure appropriate venues. The County Prosecutors Association, in its statement, suggested using larger courtrooms or county or school theaters and auditoriums.

McAleer said the state Supreme Court had considered locations such as gymnasiums but for various reasons, including availability and the ability to provide proper security, none was acceptable.

Carter’s lawyer contends that his client was a victim and not an accomplice in a November robbery in Trenton. Another man, who has not been identified, pulled out a gun and ordered the victim to hand over his wallet to Carter, who then under the gunman’s order gave it to the gunman, Fury said. Authorities allege that both Carter and the other man robbed the victim of $2,850.

Fury said that video of the episode, which the grand jurors should have seen, would be cause for reasonable doubt of the allegations against Carter, who remains jailed in New Jersey.

“Seeing video live in a courtroom is tough enough,” he said. “How do you show it on Zoom and make sure everybody got a good view of it?”