The moot court case used in the summer of 2003 was loosely based on the real case of State v. Fuller, 356 N.J. Super. 266 (App. Div. 2002), certif. denied on other grounds and appeal pending, 176 N.J. 74 (2003), raising the issue whether a prosecutor violates the Constitution when exercising peremptory challenges based on a potential juror's religion/religious beliefs.
The case was argued before the Supreme Court on December 2, 2003, and student Ward Saxton attended:
Oral Arguments, State v. Fuller
by Ward Saxton, © 2003 W. Ward Saxton
I drove to the Richard J. Hughes Justice Complex in Trenton, NJ, on Tuesday, December 2, 2003, because the NJ Supreme Court was hearing oral arguments in the case of State v. Fuller, 356 N.J. Super. 266. I had taken Appellate Advocacy with Professor Judy Russell in the summer of 2003 and Fuller was the case that, for all intents and purposes, I briefed and argued in Prof. Russell's class.
I had never before heard arguments at a State Supreme Court level and I was surprised by two things in particular. First, for as modern and stately as is the New Jersey Supreme Court Courtroom, the demeanor and poise of the Justices and the attorneys who argued were far less formal than I ever imagined, and certainly far less formal than that displayed during those arguments conducted in Prof. Russell's class. And second, I was suprised that the Justices appeared to "telegraph" where they stood on the issues by their comments and questions.
Due to weather conditions that caught off-guard the general surrounding region on that morning, arguments were delayed. I arrived after 10 AM, and although Fuller was the first case on the schedule, the two scheduled cases had switched order in order to accommodate those who had made it to the Court shortly after 10 AM.
I entered the Courtroom as the last of a group of high school students, most far better dressed than I, were filing in. The only seat left on the side on which I entered was directly behind counsel table, and I took it hesitantly, fearing at first that I was placing myself in a seat designated for counsel. I sat behind one of the people at counsel table that I thought looked familiar, and indeed, that person turned out to be Ronald Chen, the Dean of my law school.
The case being argued first, State v. Frankel, involved the police investigation of a 911 call that originated from a private home. When the homeowner answered the door he stuck his head out from a sheet covering the door, acted highly nervous, stated he did not know how the 911 call was made, that nothing was wrong, and that he did not consent to having the police make any investigation inside his house. The police entered and found the house was being used as a greenhouse for marijuana.
The Justices made clear that the question they wanted answered was whether a 911 call per se granted police or EMTs the right of entry into a property, and if it did so even if the homeowner did not consent to the entry.
By the time the young and less-than-poised attorney as amicus for the ACLU argued, and he argued that the Fourth Amendment protected private homeowners, the Justices pressed him to answer why a 911 call did not per se grant the right of entry if someone suffering from a heart-attack finished the 911 call and then collapsed. The attorney responded that if the officer did a reasonable assessment of the premises and did not see or hear that an emergency requiring entry existed, then the officer is precluded from entry by the Fourth Amendment. This argument clearly held little weight with the Justices who continued to pose the hypothetical that the heart-attack victim has fallen down and is out of the officer's sight, and who continued to be dissatisfied with the attorney's firmly held answer. The attorney allowed the moment to remain held uncomfortably, and would have been strongly aided had he used the reply with which Prof. Russell repeatedly armed her students: "I'm sorry, but I simply can not concede that point [that a 911 call is a per se grant of consent to entry into a private home]."
As the respondent began her argument, the Justices turned the argument to the logical inverse conclusion:
"Say a child is playing with the phone, dials 911, and when the officer arrives the parent at the door states that the call was the result of the child's action..."
"That's what happened recently with my child," interrupted the attorney. ("Didn't Prof. Russell repeatedly inform us that personal stories and perspective were verboten in appellate advocacy?" I thought.)
"...Does the call grant the officer the right to search the house even if the parent does not give consent?" finished the Justice.
The state argued that 911 calls do grant a per se right for an investigator to enter a private property, but as persuasive as this argument seemed when the hypothetical was that a victim had fallen out of sight, this argument seemed to fall short (especially from the looks on the faces of the Justices) when a homeowner states to the investigator that he or she does not give consent to the entry.
The discourse between the Court and counsel on both sides included discussion of the small percentage of 911 calls that happen spontaneously, the percentage where only static can be heard, where there is no other sound but ambient noise, and the possibilities of calls denied to be emergent due to the possibility of domestic abuse. The Court appeared to me to be eager to show toward which side they seemed to be leaning and seemed to signal that there was no easy bright line to be drawn. (Later I thought that perhaps the Court may have heightened their own performance for a school-aged Courtroom audience.) The scope of their opinion clearly runs the risk of excluding reasonable investigation at the home of a 911 caller who has collapsed out of sight of an officer who investigates from the outside of windows and doors, as well as running the risk of excluding reasonable investigation of someone who does not consent to investigation for their own illicit purposes. The Court thanked counsel, and said they would render their decision.
During that argument, the Court had been sitting with three female and three male Justices. After a moment's pause the wooden panel behind Chief Justice Poritz seemed to open like one would expect the doors on any Star Trek ship to open, and another Justice joined the bench and took his seat. I wondered why this happened. Was it because the newly added Justice had recused himself from the last case, or had the weather delayed this Justice while the Court could still hear a case with a majority of Justices sitting?
Chief Justice Poritz called the case of Fuller and Mr. Pugliese, counsel for the appellant, approached the podium. Mr. Pugliese was one of the three "judges" before whom I had argued the "Fuller-like" case in Prof. Russell's course. Mr. Pugliese obviously began before looking up at the Justices to see if they were ready . . . wasn't this an oft-repeated admonishment in Prof. Russell's course? . . . because the Chief Justice told him to wait a moment while all the Justices settled. When the Justices had settled and Mr. Pugliese began again, he apologized for being late and inconveniencing the Court. "Oh yes," replied one of the Justices jovially. "It was YOU who kept us waiting." Laughter spread throughout the Courtroom as everyone instantly remembered the tribulations the weather had imposed that morning on a Trenton arrival. "Actually," continued the Justice, "the weather has made each of us, and likely everyone in this Courtroom late, so you needn't apologize."
I must admit to having difficulty focusing for the first few minutes on Mr. Pugliese's argument due to a phenomenon with which I am familiar. I have been an actor/singer all of my life and have, at times, had a successful professional career. There is a certain amount of nervousness one experiences when in a production at which an understudy performs. It is the same nervousness one experiences when actually performing one's own part before the audience, but in this case, one experiences the feeling of performance nervousness while being an audience member. This is exactly how I felt watching the argument I had made four months earlier, as I had argued as the appellant. Only then it was as part of a class, and now I was watching the real thing. Mr. Pugliese's words swirled through my head as if they were "lines" I had only stopped uttering a short time ago.
Mr. Pugliese speaks with a very soft tone, and his speech pattern makes the listener engage in strong active listening. Such effort tires the listener, but Mr. Pugliese' arguments came across well despite such soft delivery. It seemed abundantly clear to me, from the beginning of his argument until the end of opposing counsel's, that the Court leaned heavily toward appellant's argument.
Fuller involves the issue of limiting New Jersey's peremptory challenges at the trial court level so that they can not be used to preclude jurors based on a prosecuting or defending attorney's discriminatory stereotyping of religion. Here, a prosecutor excluded a Muslim juror simply because the juror wore a skull-cap and garb suggestive of his faith. From this fact, the prosecutor concluded that the juror was devoutly religious because the wearing of such clothes made the juror "demonstratively religious," and devoutly religious persons, in the prosecutor's experience, did not make good prosecution jurors because they were forgiving and non-judgmental.
There were familiar questions asked by the Court. These questions were familiar because Prof. Russell had prepared her students for them. One Justice asked Mr. Pugliese to define a cognizable group. He did so much like I remembered doing so. "A cognizable group is one that has been shown to have been invidiously discriminated against due to qualities or outward appearances that others associate as belonging to that group."
One interesting interchange between members of the Court and Mr. Pugliese involved the Justices' re-direction of the attorney’s argument. One Justice followed up the question of another with a different tact. The result was that, momentarily, Mr. Pugliese's argument seemed to have been painted into a corner. The first Justice asked Mr. Pugliese if one way to avoid what occurred at the Fuller jury trial would have been to put to the jury pool in its entirety the general question: "Do you hold ANY belief that would preclude you from upholding the law or deciding the case?" Mr. Pugliese answered with a qualified yes, this was a possibility.
The second Justice interjected, reinforcing the point made by asking, "Would you, in fact, ask this question of all jury candidates during the voir dire?" "Yes," Mr. Pugliese replied with some hesitancy, trying to anticipate where the Justice might be taking the argument. "Would you then ask specific jurors about their specific religious beliefs, and whether those beliefs would preclude them from upholding the law or deciding the case?" posed the Justice. "Well..." Mr. Pugliese began to reply. Without giving time for Mr. Pugliese to complete his response, the Justice continued, "For example, in the instant case would you not have asked this juror if he held any religious beliefs as the result of being a practicing Muslim that would preclude him from upholding the law or deciding the case?" Mr. Pugliese paused momentarily to consider his answer. "Would you not ask specific jurors about the specific beliefs they hold as a result of their religion?" finished the Justice, who waited for a response.
There was a resounding silence in the Courtroom while Mr. Pugliese considered the argument he had just been asked to profess. The first Justice, whose original inquiry had led to the argument at hand, in an effort to rectify the situation, said, "Wait. The intent of my question was not to bring Mr. Pugliese along this line of argument."
"Well, that really resulted from my throwing the argument at Mr. Pugliese," responded the second Justice.
"I would like to inform the Court that the argument I seem to be making now is not what I had intended," Mr. Pugliese said through the process of thinking on his feet.
The Court seemed to take a moment's breath. "I think we're all clear on that now," added Chief Justice Poritz with a knowing smile.
The second Justice made a recurring and profound point. "Why does the wearing of certain things equate with a person being demonstrably religious?" This Justice continuously repeated the idea that certain sects of the Jewish faith require the wearing of identifiable headgear, and the sects with such requirement were no more devoutly religious than other non-headgear-wearing sects. There was at least one instance when Mr. Pugliese stated that such was the appellant's exact argument.
At a lull toward the end of Mr. Pugliese's argument, Chief Justice Poritz looked down, smiled, and said "Thank you" in a way that was clear to all those observing that she expected Mr. Pugliese to be done. All those except Mr. Pugliese. To the Court's placating smiles and a slightly indignant chortle from an audience member or two, Mr. Pugliese finished his last few sentences. (Was this not another of Prof. Russell's admonishments, or was the end of counsel's argument governed not by the strict time cards of Prof. Russell's class or by the expected "indicating lights" that did not seem to be in use in the Courthouse, but truly by the "feel" the attorneys needed to be in tune with from the NJ Supreme Court Bench.)
The next attorney to argue was the most professional of all I heard argue that day. Dean Ronald Chen argued for appellant as amicus from the ACLU, and he was the only of five attorneys I heard enter an appearance who began with, or bothered at all to say, "May it please the Court." ("Prof. Russell, the other attorneys needed your guidance," I thought, as all the attorneys but Dean Chen continually had phrases appear in their argument like, "I think," and "I believe," and all allowed their hands to continually dance up in front of them while arguing, much as students in high school productions use their hands in the belief that continuous hand gestures somehow drive the believability and momentum of a performance. Such is not the case. Nor was it here, and it certainly flew in the face of Prof. Russell's admonishment. Most of the attorneys also spoke over the Justices, and did not stop talking when Justices interrupted. These behaviors surprised me, as did the general casual feel of the NJ Supreme Court and the attorneys arguing before it. But what surprised me just as much was the manner in which the Court seemed to wear its ultimate decision on its sleeve.)
The respondent began by countering one of Mr. Pugliese's opening assertions: "The English judicial system does not use the peremptory challenge," Mr. Pugliese had begun. "Opposing counsel is correct that the English judicial system does not use the peremptory challenge but their system of picking a jury is completely different from ours," stated the respondent. It was an argument whose infinitesimal merit only existed because Mr. Pugliese had not buttressed the statement of England not using the peremptory challenge with the notion that, in the face of balancing the use of the peremptory challenge with the discriminatory use found in Fuller, New Jersey could choose to cease its use. The respondent's argument rested on the idea that wearing a skull-cap and garb made the juror demonstratively religious because not all sects of the Muslim faith require believers to wear such headgear. In fact, the respondent's argument rested solely on this idea, and it was an argument that seemed to be found unpersuasive by the Court, as well as by a number of audience members who "mmm hmmm-ed" when the Justices made comparisons to the Muslim and Jewish faith and garb.
Some of the other questions the Justices asked in seeking to ascertain which arguments were most persuasive: Should the exclusion of all atheists be allowed through the peremptory challenge? Should the Amish be excluded because they are recognized by their standard and simple clothing? Isn't it an interesting irony if both a Quaker who holds a belief against the death penalty, and a non-religious person who holds the philosophical belief that the death penalty is amoral, would both not be excluded from a jury because they held no outward sign of their belief, but a person who wears an article of clothing associated with religion who may not hold such belief is excluded.
Again Chief Justice Poritz thanked counsel, and said the Court would render its decision. I will be truly amazed if its decision does not revise the parameters of what is allowed in a peremptory challenge so that the religion-based challenge that occurred in Fuller is held impermissible.
As the Justices rose, the Courtroom stirred, and Dean Chen walked back to counsel table. I said hello to Dean Chen. He seemed very surprised to see me. "Fuller was my Appellate Advocacy argument in Prof. Russell's class this summer," I told him. "Ah yes," he said.
I spoke with the Dean at more length outside the Courtroom. I told him, honestly, that I was very pleased to see him argue and argue well. He told me that in light of the Court's demeanor toward appellant, he had decided to make his argument more concise. He said that he had started his argument by stating that section five of the New Jersey Constitution is more protective of persons based on "Religious principals" and made the point that when referring to that term, the Constitution deliberately keeps that term broad, as can be noted from the fact that it doesn't use the word "sect," yet could have as it does in section four. He told me he made that his first point because it had not been made in his brief. That made me wonder if such action were allowed. Wasn't there a rule that a party could not argue in oral argument what it had not argued in its brief? Or was the rule that what is used in oral argument must either be in, or inferable from, the brief. It had been four months since my argument, and I felt much more comfortable not raising that question with the Dean.
As our conversation wound down, I again commented on the skill and presentation of his argument in light of the intimidation possibly felt by arguing to a State Supreme Court. "It reminds me," he replied, "that despite the fact that I am now generally seen as a school administrator, I used to be a real attorney."
"Well," I responded, "I'm sure that there wasn't an attorney there today who didn't see you as an attorney to be reckoned with -- especially your opposing counsel."
"Indeed," he said with a parental look replete with political irony, "opposing counsel was a graduate of Rutgers Law class of '88."
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