In March, the New Jersey Supreme Court ordered a measured return to in-person proceedings, trumpeting a large-scale return to in-person proceedings after nearly two years of pandemic lockdown. Some matters – like criminal jury trials – require in-person proceedings; other matters were to be generally in person but could be virtual upon consent; other matters would be virtual but within a judge’s discretion to schedule in-person. It seemed like a good accommodation and recognition of the benefits of both virtual appearances and a criminal defendant’s Sixth Amendment rights and the public’s First Amendment right to access court proceedings.

The national rush to normalcy – including our courts – may have been premature, or not – but the virus is very much with us and seemingly even more contagious although far more treatable for most. As a result many practitioners have been left in a bind. Recently some criminal defense practitioners, many over 60 years of age and with compromised immune systems, wrote to Chief Justice Stuart Rabner complaining that some judges were abusing their discretion to create a virtual alternative, and there was a lack of any safeguards in the courtroom for those who are more likely to have serious consequences if struck by COVID-19.

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