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Feb. 24, 2026 Get Citation Alerts Download PDF Add Note

State v. Walter J. Gilliano

Supreme Court of New Jersey

• Citations: None known

• Docket Number: S-73/74-25

• Opinion

• Authorities (23)

• Cited By (0)

• Summaries (0)

• Similar Cases (27.9K)

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Combined Opinion

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of
the Clerk for the convenience of the reader. It has been neither reviewed nor approved
by the Court and may not summarize all portions of the opinion.

State v. Walter J. Gilliano (S-73/74-25) (091601)

Decided by Order January 21, 2026 -- Opinion Filed February 24, 2026

CHIEF JUSTICE RABNER, writing for a unanimous Court.

By order dated January 21, 2026, the Court directed that defendant Walter
Gilliano’s trial resume with the jury panel that had already been summoned. This
opinion states the reasons for that ruling.

Defendant’s trial was scheduled to begin with jury selection on January 13,
2026. Notices had been sent to potential jurors about eight weeks earlier, consistent
with ordinary practice. Out of the 801 prospective jurors, nine responded to a pre-
screening questionnaire that they had been convicted of an indictable offense. Under
state law, “[e]very person summoned as a juror . . . shall not have been convicted of
any indictable offense under the laws of this State, another state, or the United States.”
N.J.S.A. 2B:20-1(e). The nine individuals were therefore excused from service.

On January 11, 2026, two days before jury selection, Governor Philip D.
Murphy signed Executive Order 411 (EO 411), which granted clemency -- to the extent
needed to restore the ability to qualify for jury service -- to certain individuals with a
conviction of an indictable offense. Following the Executive Order, the State asked the
court to strike the existing jury pool and summon a new one, or to direct the nine
individuals who had been disqualified to appear for jury selection the next day. The
Presiding Judge of the Criminal Division denied the requests.

The parties filed for emergent relief before the Court on January 14, and the
Court asked for expedited briefing and additional information on certain points.
Defendant argues that EO 411 implicates his constitutional right to a fair and impartial
jury selected from a representative cross-section of the community; that including
individuals who have been convicted of an indictable offense remediates “established
exclusions of minority racial groups” from jury service; and that EO 411 must apply to
ongoing jury selections conducted immediately after the order was issued.

HELD: Because defendant could not establish that the existing jury pool violated his
right to trial by a jury drawn from a representative cross-section of the community, the
Court agreed with the trial court’s determination not to dismiss the jury pool that had
been summoned before the Governor issued EO 411.
1
1. To establish a violation of the fair-cross-section requirement, defendants must (1)
“identify a constitutionally cognizable group”; (2) “prove substantial
underrepresentation over a significant period of time”; and (3) “show discriminatory
purpose.” State v. Dangcil, 248 N.J. 114, 141 (2021). If a defendant establishes all
three prongs, the State must demonstrate “that a significant state interest is manifestly
and primarily advanced by those aspects of the jury selection process that result in
disproportionate exclusion of the distinctive group.” Ibid. (pp. 8-9)

1. A “constitutionally cognizable group” “must be one that has been historically
   excluded, on the basis of stereotypical prejudices, from full participation in the
   significant duties and privileges of American citizenship.” Id. at 143. The group
   defendant points to is limited to (1) individuals granted clemency for convictions of an
   indictable offense (2) under New Jersey law, (3) which occurred on or before January
   10, 2026, (4) who have satisfied the non-monetary aspects of their sentences. The
   group identified in EO 411, therefore, is not readily defined by the principles recounted
   above. It is a specific group of individuals with New Jersey convictions for indictable
   offenses during a particular time frame. As to the second prong, the record in this
   appeal refers to nine individuals who were excluded from the jury pool because they
   reported they had an indictable conviction. Although defendant and the Public
   Defender presented data about racial disparities in the rate of incarceration, the present
   record does not contain proof of underrepresentation of a cognizable group within jury
   pools drawn from the community for a substantial period of time. Third, defendant
   contends that the group’s lack of representation is due to systematic exclusion. The
   Court reviews the neutral process of summoning jurors and notes that defendant has
   not identified any discriminatory animus in the ordinary procedures followed.
   Defendant has not carried his burden to establish a violation of the fair-cross-section
   requirement. His claim under the Sixth Amendment thus cannot prevail. (pp. 10-18)

2. Jury management offices could not anticipate the terms of EO 411 weeks or months
   in advance. Even if they could, play in the joints of the jury-selection process is
   necessary in order to accommodate the practical problems of judicial administration.
   Otherwise, 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. Moreover, nothing in the Executive Order, including the
   fact that it took effect immediately, suggests the Governor intended to halt all criminal
   jury trials statewide for two months. The Court reviews the steps the Administrative
   Office of the Courts (AOC) has taken to implement EO 411 and asks the Director of
   the AOC to continue to monitor the current process to summon jurors and make any
   additional administrative changes that may be needed. (pp. 20-21)

The request for emergent relief is DENIED.

JUSTICES PATTERSON, PIERRE-LOUIS, WAINER APTER, FASCIALE,
NORIEGA, and HOFFMAN join in CHIEF JUSTICE RABNER’s opinion.

2
SUPREME COURT OF NEW JERSEY
S-73/74 September Term 2025
091601

State of New Jersey,

Plaintiff,

v.

Walter J. Gilliano,

Defendant.

On Emergent Applications
Pursuant to Rule 2:9-8.

Decided by Order Opinion Filed
January 21, 2026 February 24, 2025

Andrew B. Johns, Gloucester County Prosecutor, attorney
for plaintiff (Alec Gutierrez, Chief Assistant Prosecutor,
and Katherine Mika, Deputy Chief Assistant Prosecutor,
of counsel and on the brief).

Christopher St. John, attorney for defendant (Christopher
St. John, and Tess A. Berkowitz, on the brief).

Jennifer Davenport, Acting Attorney General of New
Jersey, appearing as amicus curiae (Jeremy M.
Feigenbaum, Solicitor General, Michael L. Zuckerman,
Deputy Solicitor General, Claudia J. Demitro, Assistant
Attorney General, and Jennifer E. Kmieciak, David M.
Galemba, Amanda G. Schwartz, and Naima P. Drecker-
Waxman, Deputy Attorneys General, of counsel and on
the brief).

1
Jennifer N. Sellitti, Public Defender of New Jersey,
appearing as amicus curiae (Rachel A. Neckes and
Margaret McLane, Assistant Deputy Public Defenders, of
counsel and on the brief).

CHIEF JUSTICE RABNER delivered the opinion of the Court.

On January 11, 2026, Governor Philip D. Murphy issued an executive

order that granted clemency -- to the extent needed to restore the ability to

qualify for jury service -- to certain individuals with a conviction of an

indictable offense.

Defendant’s trial was slated to start two days later, on January 13.

Consistent with standard practice, prospective jurors received a jury summons

and questionnaire about eight weeks earlier. In response, nine individuals

reported they had a prior conviction for an indictable criminal offense, and

they were excused from jury service.

On the morning of trial, the parties asked the trial court to summon a

new jury pool. The court denied the request, and the parties sought emergent

appellate review. Because defendant could not establish that the existing jury

pool violated his “right to trial by a jury drawn from a representative cross-

section of the community,” State v. Dangcil, 248 N.J. 114, 140 (2021) (quoting

State v. Andujar, 247 N.J. 275, 296-97 (2021)), we agreed with the trial court’s

determination. We therefore issued an order on January 21 directing that

2
defendant’s trial resume with the jury panel that had already been summoned.

This opinion states the reasons for the Court’s ruling.

I.

A.

On December 8, 2022, a grand jury in Gloucester County indicted

defendant Walter Gilliano for murder and multiple firearms offenses. As

noted above, his trial was scheduled to begin with jury selection on January

13, 2026. Notices had been sent to potential jurors about eight weeks earlier,

around November 17, 2025. Out of the group of 801 prospective jurors, nine

responded to a pre-screening questionnaire that they had been convicted of an

indictable offense.

Under state law, “[e]very person summoned as a juror . . . shall not have

been convicted of any indictable offense under the laws of this State, another

state, or the United States.” N.J.S.A. 2B:20-1(e). The nine individuals were

therefore excused from service.

B.

On January 11, 2026, two days before jury selection, Governor Murphy

signed Executive Order 411 (EO 411), available at https://nj.gov/infobank/eo/

056murphy/pdf/EO-411.pdf. The order granted executive clemency for “a

conviction of an indictable offense under the laws of this State . . . to the

3
extent necessary to restore [any individual’s] right or ability to qualify for jury

service upon the discharge of the non-monetary components of their criminal

sentence.” EO 411, ¶ 1.

EO 411 applied to “any term of incarceration, probation, or parole,

provided that . . . [t]he disqualifying conviction occurred on or before January

10, 2026.” Ibid. The order was not to be “considered a full pardon” and

restored only the “ability to qualify for jury service.” Id. ¶ 5. Individuals who

qualified are still subject to for-cause challenges. Id. ¶ 4. The order took

effect “immediately.” Id. ¶ 12.

C.

On the morning of jury selection for defendant’s case, the trial court was

prepared to clarify for the jury pool that individuals with an indictable New

Jersey conviction on or before January 10, 2026 were no longer disqualified

from jury service. The parties asked for more information about responses to

the pre-screening questionnaire. Upon learning that nine jurors had been

excused because of an indictable conviction, the State asked the trial court to

rule on whether there was an appropriate cross-section of the community in the

current pool.

Ultimately, the State asked the court to strike the existing jury pool and

summon a new one. In the alternative, the State requested that the court direct

4
the nine individuals who had been disqualified to appear for jury selection the

next day.

The Presiding Judge of the Criminal Division heard the application and

denied the motion to strike the jury pool. The court directed that jury selection

continue with the current panel and declined to order the nine prospective

jurors to participate in the selection process. The trial court stayed its ruling to

allow the State to seek emergent relief.

The State applied for permission to file an emergent motion before the

Appellate Division seeking the same relief. Defendant did so as well. The

appellate court denied the applications and kept the stay in place to allow the

parties to apply to this Court.

D.

The parties filed for emergent relief before the Court on January 14. In

an order the next day, the Court asked for expedited briefing and additional

information on certain points. The Court also granted the Public Defender and

the Attorney General amicus status to participate in the appeal.

II.

The parties’ positions have understandably evolved. The Governor

signed EO 411 on Sunday, January 11, 2026. Counsel appeared for the start of

trial just two days later -- before the State had adequate time to consult with

5
other offices, and before defendant had fully staked out a position. The

parties’ and amici’s helpful briefs to this Court were submitted on January 19.

Defendant now argues that Executive Order 411 implicates his

constitutional right to a fair and impartial jury of peers selected from a

representative cross-section of the community. He contends that including

individuals who have been convicted of an indictable offense remediates

“established exclusions of minority racial groups” from jury service.

Defendant also submits that EO 411 must apply to ongoing jury selections

conducted immediately after the order was issued.

The Public Defender supports defendant’s position. The Public

Defender argues that empaneling a jury that does not include people granted

clemency by EO 411 violates the plain language of the order and defendant’s

rights to a fair jury and to equal protection.

The State now submits that criminal defendants can only challenge an

individual’s “non-participation” in jury selection immediately after an order of

clemency when there is a violation of the defendant’s federal or state

constitutional rights. The State contends that individuals with felony

convictions are not a cognizable, historically protected group under the Sixth

Amendment, and that expanding eligibility for jury service does not “convert

previously lawful exclusions” into constitutional violations.

6
The Attorney General argues that the constitutional requirement of a jury

drawn from a fair cross-section of the community “serves to protect against

invidious discrimination, not to dissect . . . routine jury-management

practices.” The Attorney General further submits there is no fair-cross-section

violation in this case because the individuals covered by EO 411 do not

comprise a constitutionally cognizable group and have not experienced “any

longstanding underrepresentation.” The Attorney General also maintains that

exclusions that stem from benign jury-management practices do not present the

type of animus or systematic exclusion necessary to establish a constitutional

violation.

III.

This appeal stems from an act of executive clemency -- an act of

executive mercy. Ex parte Wells, 59 U.S. (18 How.) 307, 311 (1856). The

“[p]ower of executive clemency in this country undoubtedly derived from the

practice as it had existed in England.” Solesbee v. Balkcom, 339 U.S. 9, 12

(1950). That “power has traditionally rested in governors or the President.”

Ibid.

The power of executive clemency is not subject to judicial review. See

In re Petition for Expungement of the Crim. Rec. Belonging to T.O., 244 N.J.

514, 530 (2021) (“[The] power to pardon lies exclusively with the Executive,

7
and the decision to pardon is not subject to judicial review.” (citing State v.

Mangino, 17 N.J. Super. 587, 591 (App. Div. 1952) (declining to review an act

of “executive clemency”))); see also State v. Lagares, 127 N.J. 20, 27 (1992)

(“[T]he Constitution grants the Governor unreviewable power to pardon

offenders and to commute judicially-imposed sentences.” (citing N.J. Const.

art. V, § II, ¶ 1; N.J.S.A. 2A:167-4)).

The parties do not challenge the Governor’s authority to issue EO 411.

Nor does defendant argue that a change that expands a person’s eligibility to

serve on a jury presents a constitutional concern if the change is not

implemented at once. Defendant instead raises a claim under the Sixth

Amendment -- his “right to trial by a jury drawn from a representative cross-

section of the community.” Dangcil, 248 N.J. at 140; see also Taylor v.

Louisiana, 419 U.S. 522, 528 (1975); Duren v. Missouri, 439 U.S. 357, 359 n.1

(1979).

A.

To establish a violation of the fair-cross-section requirement, defendants

must (1) “identify a constitutionally cognizable group”; (2) “prove substantial

underrepresentation over a significant period of time”; and (3) “show

discriminatory purpose.” Dangcil, 248 N.J. at 141 (quoting State v. Dixon,

8
125 N.J. 223, 232 (1991)). 1 If a defendant establishes all three prongs, the

State must demonstrate “that a significant state interest is manifestly and

primarily advanced by those aspects of the jury selection process that result in

disproportionate exclusion of the distinctive group.” Ibid. (quoting State v.

Ramseur, 106 N.J. 123, 216-17 (1987)).

We address each prong in turn. First, a constitutionally cognizable

group includes, at a minimum, “those defined on the basis of religious

1
The Public Defender, as amicus, submits that the Court should instead
apply the standard the United States Supreme Court advanced in Berghuis v.
Smith. Berghuis requires defendants seeking “[t]o establish a . . . violation of
the fair-cross-section requirement” to show that “(1) a group qualifying as
‘distinctive’ (2) is not fairly and reasonably represented in jury venires, and (3)
‘systematic exclusion’ in the jury-selection process accounts for the
underrepresentation.” 559 U.S. 314, 327 (2010) (quoting Duren, 439 U.S. at
364); see also State v. Hightower, 120 N.J. 378, 400-01 (1990) (distinguishing
between the showings required for equal protection and fair-cross-section
claims); State v. Ramseur, 106 N.J. 123, 215-16 (1987) (same). Defendant
recites the above factors, relying on Ramseur and Duren, but does not
challenge the current test outlined in Dixon and Dangcil.

As explained later in this opinion, defendant’s claim is directed at an
eight-week period during which jury managers and staff excluded individuals
with prior convictions from jury pools, consistent with existing law at the time,
and several additional days when the Judiciary responded to an executive order
it could not have anticipated. That does not amount to “systematic exclusion.”
Moreover, defendant has not presented sufficient evidence about the
composition of jury venires. Defendant’s challenge would therefore fail under
Berghuis, which requires that all three components be met. We need not
address the remaining element.

We decline to reassess the standard in Dixon and Dangcil at this time
and await a direct challenge by a party.
9
principles, race, color, ancestry, national origin, and sex.” State v. Gilmore,

103 N.J. 508, 526 n.3 (1986), modified in other part, State v. Osorio, 199 N.J.

486, 502-04 (2009). In other words, the “group must be one that has been

historically excluded, on the basis of stereotypical prejudices, from full

participation in the significant duties and privileges of American citizenship.”

Dangcil, 248 N.J. at 143 (quoting State v. Bellamy, 260 N.J. Super. 449, 456-

57 (App. Div. 1992)).

To be clear, defendant does not challenge the statutory bar to jury

service. As noted earlier, the existing prohibition applies to individuals

convicted of an indictable offense under the laws of New Jersey, of another

state, or of the federal government. N.J.S.A. 2B:20-1(e). Challenges in other

jurisdictions have found that similar laws have a rational basis and are not

unconstitutional. See, e.g., United States v. Foxworth, 599 F.2d 1, 4 (1st Cir.

1979); United States v. Greene, 995 F.2d 793, 795-98 (8th Cir. 1993); United

States v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993); United States v. Barry, 71

F.3d 1269, 1271-74 (7th Cir. 1995); Carle v. United States, 705 A.2d 682, 686

(D.C. 1998); Rubio v. Super. Ct., 593 P.2d 595, 600 (Cal. 1979); Shows v.

State, 267 So. 2d 811, 812 (Miss. 1972).

The constitutionally cognizable group defendant points to is limited to

(1) individuals granted clemency for convictions of an indictable offense (2)

10
under New Jersey law, (3) which occurred on or before January 10, 2026, (4)

who have satisfied the non-monetary aspects of their sentences. Those with

out-of-state or federal convictions before January 11, 2026 are still barred

from jury service. The same is true for all individuals convicted of an

indictable offense on or after January 11, 2026. The group identified in EO

411, therefore, is not readily defined by the principles recounted above. See

Gilmore, 103 N.J. at 526 n.3. It is a specific group of individuals with New

Jersey convictions for indictable offenses during a particular time frame.

Defendant relies on EO 411, which points to “hundreds of thousands of

individuals” excluded “from jury service . . . in a manner that reflects the

disparities of our criminal justice system.” EO 411, at 2. The Order also

references various steps the Murphy Administration took to reduce “collateral

consequences of a conviction . . . , which disproportionately affect Black and

Hispanic or Latino New Jerseyans.” Id. at 1.

The Executive Order reflects a policy determination by the Governor in

the exercise of his authority to grant clemency. As the New Jersey Supreme

Court observed more than a century ago, the Executive’s authority “is founded

on considerations of the public good, and is to be exercised on the ground that

the public welfare, which is the legitimate object of all punishment, will be as

11
well promoted by” an act of clemency. Cook v. Bd. of Chosen Freeholders, 26

N.J.L. 326, 333 (Sup. Ct. 1857).

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. Nor does the recommendation of

the Committee of the Judiciary Conference on Jury Selection (Committee).

This Court approved the Committee’s recommendation that “[t]he

Legislature should explore options for an individual who has completed their

sentence (including any term of supervision) to be restored to eligibility to

serve as a juror, subject to potential challenge for cause or peremptory

challenge.” Sup. Ct., Administrative Determinations 1, rec. 2 (July 12, 2022),

https://www.njcourts.gov/sites/default/files/administrativedeterminations.pdf.

We cannot rely on that recommendation to address the legal question this

appeal presents.

Second, defendant must “prove substantial underrepresentation over a

significant period of time.” Dangcil, 248 N.J. at 141 (quoting Dixon, 125 N.J.

232). The record in this appeal refers to nine individuals who were excluded

from the jury pool because they reported they had an indictable conviction.

We cannot determine whether EO 411 restored the right to jury service for all

12
nine because it is unclear whether their reported convictions stemmed from a

violation of New Jersey law, the laws of other states, or federal law. It is also

unclear whether others did not respond to the questionnaire because they

believed they could not qualify.

In a footnote, defendant cites a statement by the New Jersey Institute for

Social Justice, addressing the Committee’s report, that Black adults are “12

times more likely to be in prison” than white adults, and are “overrepresented

in detainment and incarceration and underrepresented on juries.” N.J. Inst.

Soc. Just., Statement on Jury Selection Committee Report 2-3 (Apr. 19, 2022),

https://www.njcourts.gov/notices/notice-jury-reform-recommendations-of-

committee-of-judicial-conference-jury-selection (pp. 51-52).

In addition, the Public Defender, citing the Governor’s press release that

accompanied EO 411, asserts that more than 350,000 New Jerseyans are now

eligible to serve on juries because of Executive Order 411. See Off. of the

Governor, Press Release: Governor Murphy Restores Jury Service Rights for

People Previously Disqualified Because of a Conviction (Jan. 11, 2026),

https://dspace.njstatelib.org/server/api/core/bitstreams/80132004-4caa-413a-

82b4-7d9704be4cbe/content. The Public Defender then compares the overall

disparity between white (73.6%) and Black (12.7%) residents in Gloucester

County with the rate of people convicted in the County -- 61.5% white and

13
35.4% Black. See U.S. Census, QuickFacts: Gloucester County, New Jersey,

https://www.census.gov/quickfacts/fact/table/gloucestercountynewjersey# (last

visited Feb. 19, 2026); Off. of the Att’y Gen., Criminal Justice Data

Dashboard (2025), available at https://www.njoag.gov/justicedata (last visited

Feb. 19, 2026) (requiring download and review of data). The Public Defender

contends the data “undoubtedly does not represent all the New Jerseyans living

in Gloucester County who had their jury-service rights restored by EO 411”

and also submits it confirms the disproportionate effect the criminal justice

system has on “Black and Hispanic or Latino New Jerseyans.” The Public

Defender also cites data about racial disparities in the rate of incarceration in

New Jersey overall.

We do not question the good faith efforts of defendant and the Public

Defender in presenting the above data on short notice. We also recognize that

there is no “specific mathematical test for determining when

underrepresentation becomes ‘substantial’ and therefore constitutionally

suspect.” Ramseur, 106 N.J. at 217 (discussing equal protection claims). But

the present record does not contain proof of underrepresentation of a

cognizable group within jury pools drawn from the community for a

substantial period of time. See id. at 217-23 (discussing examples of and

methods to review data on underrepresentation in jury pools).

14
Third, defendant must “show discriminatory purpose” in the jury-

selection process “either by the strength of [a] statistical showing or by

showing the use of racially non-neutral selection procedures to support the

inference of discrimination raised by substantial underrepresentation.”

Dangcil, 248 N.J. at 141 (emphasis added) (quoting Dixon, 125 N.J. at 232).

To meet that burden, defendant contends that the group’s lack of

representation is due to systematic exclusion. The Public Defender submits

that “continuing to exclude this predominantly Black and Hispanic population

of jurors in the face of an Executive Order compelling their inclusion should

be seen as nothing short of deliberate discrimination.”

Those arguments fall short. The right to serve on a jury is triggered by a

summons. Jury managers throughout the state, who are employed by the

Judiciary, follow a neutral set of procedures to summon jurors. Drawing on

lists of “registered voters, licensed drivers, filers of State gross income tax

returns and filers of homestead rebate or credit application forms,” N.J.S.A.

2B:20-2(a), each county compiles a single list of prospective jurors.

Jury management offices are then required to send a summons -- a

written notice that states the date, time, and place to appear for jury service --

“at least 30 days” before “the juror is to appear.” Id. at -8. The Judiciary

sends summonses six to eight weeks in advance. N.J. Judiciary Bench Manual

15
on Jury Selection 4 (Dec. 4, 2014) (Bench Manual), https://www.njcourts.gov/

sites/default/files/jurors/njbenchmanual.pdf. According to the Administrative

Office of the Courts (AOC), summonses are generally sent each week to

enable trials to be conducted on a regular basis throughout the year.

Each summons directs the recipient to complete an online questionnaire

within seven days to determine whether the person is eligible for jury service.

See N.J. Courts, Complete Your Questionnaire, Sample Postcard Summons,

available at https://www.njcourts.gov/jurors/service. A hard copy of the

questionnaire follows if the recipient does not respond within twenty-one days.

Guide to the New Jersey Judicial Conference on Jury Selection (Guide) A-11,

E-1, available at https://www.njcourts.gov/sites/default/files/attorneys/jury-

reforms/jury-selection-guide-printedversion.pdf. Summonses pose questions

that track the statutory grounds for excuse from jury service. For example,

they ask whether a prospective juror is a resident of the county where they are

being summoned, can read and understand English, is 18 years old or older,

and is a U.S. citizen, among other statutory qualifications. See N.J.S.A.

2B:20-1, Guide at F-3. Summonses also include the following question:

“Have you been convicted of or pleaded guilty to an indictable criminal

offense? Do not include traffic or disorderly person offenses. State the charge

and the year.” Guide at F-3.

16
As responses are received, jury managers and staff contact individual

prospective jurors with follow-up questions, if necessary. According to the

AOC, nearly all jurors who report they have a prior conviction are contacted.

Managers and staff then excuse prospective jurors so that they are not required

to take time away from work or personal obligations and travel to court only to

learn that they do not qualify and are excused. In this case, the jury

management office excused nine prospective jurors from service consistent

with existing law at the time. N.J.S.A. 2B:20-1(e) barred the individuals from

serving because they had “been convicted of any indictable offense.”

The neutral process described above promotes efficiency and

convenience to members of the public. See Bench Manual at 4. Defendant has

not identified any discriminatory animus in the ordinary procedures followed.

See Dangcil, 248 N.J. at 141. And, as set forth below, the process was

modified within days of Executive Order 411 in order to comply with it.

We note as well that the trial court in this matter declined to order all

nine jurors to report to the courthouse after they had already been excused.

The court’s decision reflected a practical reality: individuals cannot

reasonably be expected to drop everything on a moment’s notice to appear for

jury selection.

17
For the above reasons, defendant has not carried his burden to establish a

violation of the fair-cross-section requirement. His claim under the Sixth

Amendment therefore cannot prevail.

B.

The Public Defender also raises an equal protection claim under the

Federal and State Constitutions. The office contends that empaneling a jury

that does not include people granted clemency by the Executive Order violates

defendant’s right to equal protection under the law. Defendant did not raise

such a challenge. We therefore decline to address it. See Bethlehem Twp. Bd.

of Educ. v. Bethlehem Twp. Educ. Ass’n, 91 N.J. 38, 48-49 (1982) (noting

that, as a general rule, an amicus “cannot raise issues not raised by the

parties”); accord State in Int. of A.A., 240 N.J. 341, 359 n.1 (2020). We also

note that the Public Defender’s equal protection argument rests on the same

considerations identified in Dangcil, which are analyzed above.

C.

We are mindful of other considerations as well. The AOC advises that,

at the time EO 411 was signed, summonses had been issued statewide calling

on prospective jurors to serve for trials scheduled through the middle of

March. The Attorney General represents that 436 criminal jury trials were

scheduled to start from January 16 to March 6, 2026. And in a typical month,

18
according to the AOC, jury selection is actually conducted in about 30

criminal cases statewide.

To be sure, had defendant established a Sixth Amendment violation

based on the Executive Order, it might well have been necessary to summon a

new panel for his trial. But that is not the case, for the reasons set forth above.

Beyond that, jury management offices could not anticipate the terms of

Executive Order 411 weeks or months in advance. Even if they could, “play in

the joints of the jury-selection process is necessary in order to accommodate

the practical problems of judicial administration.” Hamling v. United States,

418 U.S. 87, 138 (1974). Otherwise, 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. Moreover,

nothing in the Executive Order, including the fact that it took effect

immediately, suggests the Governor intended to halt all criminal jury trials

statewide for two months.

IV.

Since the Governor issued Executive Order 411 on January 11, 2026, the

AOC has taken the following steps to implement it.

On January 13 and 16, the AOC provided guidance for jury managers

and staff to ask prospective jurors -- who report they have a conviction for an

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indictable offense -- revised follow-up questions consistent with Executive

Order 411. On January 15, the AOC updated the “Jurors” page of the

Judiciary’s website. It clarifies the necessary qualifications for jury service in

a manner that aligns with EO 411 and includes a link to the Executive Order.

See N.J. Courts, Jurors, https://www.njcourts.gov/jurors (in the sections titled

“General Jury Information” and “Frequently Asked Questions About Jury

Service”). In addition, on January 16, the AOC provided judges guidance for

use in the jury selection process, namely, model questions that encompass the

content of the Executive Order.

We ask the Director of the AOC to continue to monitor the current

process to summon jurors and make any additional administrative changes that

may be needed.

V.

For the reasons set forth above, we agreed with the trial court’s

determination not to dismiss the jury pool that had been summoned before the

Governor issued Executive Order 411. We therefore denied defendant’s

request for emergent relief on January 21, 2026, as the Appellate Division had

done the week before, and directed the parties to proceed with jury selection

and trial.

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JUSTICES PATTERSON, PIERRE-LOUIS, WAINER APTER,
FASCIALE, NORIEGA, and HOFFMAN join in CHIEF JUSTICE RABNER’s
opinion.

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