Is there a Stone Jury Scandal? Not So Fast …

Also, Trump is abusing his power, again.

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Today I’m going to wade into two controversies that are swirling around the Trump presidency—the Roger Stone trial and sentencing and the president’s treatment of former National Security Council aide Alexander Vindman. First, a fair warning. The facts are in a state of flux, so don’t look for absolute certainty on all counts. Indeed, one of my conclusions about Stone is a strong “maybe.” Let’s do this newsletter question-and-answer style.

Question: Did a biased juror deprive Roger Stone of a fair trial?
Answer: It doesn’t look like it. At least not yet. 

Explanation: Earlier this morning, Trump supporters on Twitter exploded with allegations of jury bias in Roger Stone’s case. One of the jurors, a woman named Tomeka Hart, wrote a Facebook post defending the four prosecutors who withdrew from the case in protest after their superiors at the Department of Justice reversed their sentencing recommendation (more on that below). 

The instant Hart outed herself, conservative journalists combed through her social media history and found that she’s not just a Democrat, she’s a former Democratic congressional candidate, a frequent donor to Democratic campaigns, and before the trial tweeted multiple times not just against Trump but also about the Mueller investigation. President Trump immediately weighed in:

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  1. Jaden

    In the spirit of my earlier comment in this discussion:

    https://www.wsj.com/articles/the-trials-of-bill-barr-11581637977?mod=opinion_lead_pos9

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    Bill Dyer

    This new article at TheHill.com contains a lot of detail regarding the extent of the juror's political commitment and prior knowledge of the Stone case, as well as her strong feelings about Trump:

    https://thehill.com/opinion/criminal-justice/483210-juror-1261-in-roger-stones-case-was-justice-undone

    I read it closely looking for an indication that the juror had answered a specific question falsely, and found no such indication. Rather, the article faults her for failing to volunteer details — in particular, regarding her prior statements on social media — in as powerful a fashion as, well, the article itself does.

    It also speculates about possible dishonesty in her questionnaire answers, but, again, has nothing but speculation.

    It discloses that the juror is herself a lawyer. Like my former opponent whom I described in another comment, then, she presumably knew well that as long as she insisted upon her ability to follow the court's instructions and base her verdict only upon evidence submitted in open court, she wasn't likely to be excused (aka stricken) for cause. Such a prospective juror may want to be on the jury or, at a minimum, to require the side she doesn't like to "spend a [peremptory] strike on."

    Nevertheless, as a matter of criminal procedure, Stone's lawyers' failure to both object and move to excuse her for cause means they've waived, for purposes of a motion for new trial and for any subsequent appeals, any and all bias complaints about her being selected for the jury. And I remain unpersuaded of the negative conclusion drawn by the author of that essay, which asserted that "Stone’s counsel, Robert Buschel, also asked a few questions but was either entirely uninformed or utterly incompetent." One cannot jump to that conclusion without knowing a whole lot more information, including the composition and demographics of the rest of the venire of prospective jurors.

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      Bill Dyer

      I meant to mention, and ought to have mentioned, that the author of the essay from TheHill.com which I just linked is Prof. Jonathan Turley, whom I respect but often, as here, disagree with.

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    Bill Dyer

    For a recent decision demonstrating how incredibly difficult it is to win on appeal with a claim of reversible error for seating a biased juror, even when you've made the proper objections to perfect your record from the trial court, consider 𝘚𝘬𝘪𝘭𝘭𝘪𝘯𝘨 𝘷. 𝘜𝘯𝘪𝘵𝘦𝘥 𝘚𝘵𝘢𝘵𝘦𝘴, 561 U.S. 358 (2010), which includes this language (citations omitted):

    ---begin quote---
    No hard-and-fast formula dictates the necessary depth or breadth of voir dire. Jury selection, we have repeatedly emphasized, is "particularly within the province of the trial judge."

    When pretrial publicity is at issue, "primary reliance on the judgment of the trial court makes [especially] good sense" because the judge "sits in the locale where the publicity is said to have had its effect" and may base her evaluation on her "own perception of the depth and extent of news stories that might influence a juror." Appellate courts making after-the-fact assessments of the media's impact on jurors should be mindful that their judgments lack the on-the-spot comprehension of the situation possessed by trial judges.

    Reviewing courts are properly resistant to second-guessing the trial judge's estimation of a juror's impartiality, for that judge's appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record—among them, the prospective juror's inflection, sincerity, demeanor, candor, body language, and apprehension of duty. In contrast to the cold transcript received by the appellate court, the in-the-moment voir dire affords the trial court a more intimate and immediate basis for assessing a venire member's fitness for jury service....

    ....

    Skilling also singles out several jurors in particular and contends they were openly biased. In reviewing claims of this type, the deference due to district courts is at its pinnacle: "A trial court's findings of juror impartiality may be overturned only for manifest error." Skilling, moreover, unsuccessfully challenged only one of the seated jurors for cause, "strong evidence that he was convinced the [other] jurors were not biased and had not formed any opinions as to his guilt."

    ....

    In sum, Skilling failed to establish that a presumption of prejudice arose or that actual bias infected the jury that tried him. Jurors, the trial court correctly comprehended, need not enter the box with empty heads in order to determine the facts impartially. "It is sufficient if the juror[s] can lay aside [their] impression[s] or opinion[s] and render a verdict based on the evidence presented in court." Taking account of the full record, rather than incomplete exchanges selectively culled from it, we find no cause to upset the lower courts' judgment that Skilling's jury met that measure. We therefore affirm the Fifth Circuit's ruling that Skilling received a fair trial.
    ---end quote---

    link:
    https://scholar.google.com/scholar_case?case=6709078768346680936

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      David French vertical-nib Author

      Thanks for quoting Skilling. I almost used it in the piece but it was already stretching quite long.

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    Bill Dyer

    Some years ago when I was picking a civil jury in Texas, right in the center of the front row of the venire was a lawyer I'd just finished up a case against. He had represented a commercial tenant who hadn't paid its rent, I represented the landlord; he did a skillful job of making me jump through all the hoops to stretch out possession as long as he could, but inevitably I got his client evicted, and neither of us was remotely surprised by any of that. We'd been pleasant and professionally cordial throughout.

    But I have one absolute rule in picking juries: I refuse to let another lawyer argue to the jury back in the jury room, after the judge and I and my opposing counsel become powerless to listen or object.

    So this guy is grinning at me, waiting for me to ask him some question, and knowing absolutely, positively, that as long as he 𝘴𝘸𝘰𝘳𝘦 he could put aside any bias from the fact I'd just whipped him in another case, there was no way he'd be disqualified for cause. Instead, I drew a black mark through his name as soon as I saw it on the list: He was my first peremptory strike, and I therefore didn't want to waste any of my limited voir dire time asking him anything.

    When I got back to my office at the end of the day, he'd left me a phone message: "Shoulda taken me, I would have been on your side this time."

    And I actually believe he was telling the truth. Probably. Except that if he wasn't, that meant my worst nightmare would come true, and another lawyer would be back there arguing in the jury room. I deem that risk unacceptable, and that's why "Never take a lawyer" is my one and only absolute rule during jury selection.

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    Bill Dyer

    First-rate 𝘰𝘳𝘪𝘨𝘪𝘯𝘢𝘭 𝘳𝘦𝘱𝘰𝘳𝘵𝘪𝘯𝘨, Mr. French. Speaking as another trial lawyer here, that voir dire transcript is 𝘥𝘪𝘴𝘱𝘰𝘴𝘪𝘵𝘪𝘷𝘦: As a matter of law, any complaint with respect to this juror's alleged bias was waived when Stone's defense counsel didn't make a specific objection for cause, and the sources of her bias were indeed disclosed by her and discussed during voir dire examination.

    I presume that the entire potential jury venire — the universe of candidates for jury service for this case, before anyone was excused for cause or made the subject of a peremptory strike — roughly reflected the District of Columbia, which of course is going to tend overwhelmingly progressive in its politics. Rather than presume that Stone's defense lawyers screwed up by failing to object or seek further examination for bias, my alternative assumption is that there were, from Stone's point of view, many other potential jurors far worse than this one in terms of likely bias, on whom Stone's lawyers presumably used their peremptory strikes. They likewise were correct in declining to object because their objection would certainly have been overruled, the prospective juror having sworn that she could put her biases aside.

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      Tony Brott

      I'm getting a real education here. Thanks for your contributions, William.

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    Tony Sells

    Question for the attorneys. Is the voir dire session the only time or at least the last time you can strike a juror based on this juror testimony? So if one of Stone's colleagues mentions to him later that they thought he should have motioned to strike this juror based on her running for office as a democrat, could Stone's lawyer tell the court that he wanted to strike him later based on this testimony?

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      David French vertical-nib Author

      You can always try again, but the judge is unlikely to grant. For example, in her order denying a motion for a new trial, she indicates Stone's lawyers renewed objections on a number of jury candidates and she granted their motion for two additional potential jurors (bringing the total rejected to 40). I'm still absolutely amazed that Stone's attorneys didn't move to strike her.

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        Tony Sells

        Thanks so much for the reply and congrats on The Dispatch. I'm really excited to be a member.

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  7. Bruce

    Suggest you read WSJ Kimberly Strassel column. Like the Dispatch but your dislike of Trump I think is effecting your judgement sometimes.

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    Andrew Potts

    One question that might put this into perspective: how often does the DOJ override the recommendation of prosecutors?

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  9. Jaden

    As a former university instructor of Biblical studies and a retired intercollegiate debate coach and professor of communication & broadcasting, I have a strong desire that in all matters (1) the complete truth is disclosed and kept in view, and (2) attention given to certain aspects of the truth is not allowed to squeeze other aspects of the truth to the periphery, perhaps even causing those other aspects to be lost sight of altogether. It is often the case that stupid, inappropriate, even wrongful words and actions of an individual are prompted and elicited by injustices committed by others which are far more egregious than the words and actions they trigger. Certainly not a justification of anything Trump has said or done, but a reality check to ensure one does not lose sight of prior events which lie at the root of events which continue to unfold. Toward that end:

    https://www.commentarymagazine.com/articles/the-fbi-scandal/

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    Jenny

    Question. How likely is the judge to follow the DOJ's amended recommendations for sentencing? How much weight does DOJ have in the ultimate sentence a person can get? I was listening to the Dispatch Podcast today, and it seemed like you guys were about to talk about the judge's role before there was a shift in the conversation.

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      Bill Dyer

      It's very hard to make any confident predictions. Every case is different, but this one is 𝘸𝘢𝘺 out of the mainstream.

      Rarely does a defendant who's already been placed under a partial gag order deliberately violate it, while incarcerated, with an internet death threat against the judge. (If I were Judge Jackson, I'd assess the maximum possible sentence based on that alone.) And even more rarely does the DoJ do this sort of public backflip in the course of 24 hours. These variables take the case several standard deviations out of "normal experience," to the extent there is such a thing in sentencing.

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        Jenny

        Thanks! I get that what DoJ (oops) did in weighing in on the sentencing is irregular, but it's not made much sense how this effects the judge giving the sentence. So it's within her power to ignore DoJ's recommendations and give him the full 7-9 years?

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          Bill Dyer

          "So it's within her power to ignore DoJ's recommendations and give him the full 7-9 years?"

          Absolutely, yes.

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            Jenny

            I appreciate you taking the time to clear this up for me. Enjoy the rest of your weekend!

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