There is an interesting new controversy developing around the trial of Roger Stone. This one does not focus on the sentencing of Stone but his trial. New information has emerged that the foreperson of the trial has a long history of highly critical postings against President Donald Trump and his administration. Former Memphis City Schools Board President Tomeka Hart recently went public with her support of the prosecutors who resigned from the case. However, there are now questions of why Hart was allowed on the jury, let alone made the foreperson given her highly critical view of Trump and his associates before being called for jury service. Not only has Hart called Trump supporters like Stone racists but she celebrated a protest that projected profanities on the Trump hotel with the words “Gotta Love It.”
Hart publicly identified herself as the foreperson is offering a full-throated defense of the prosecution against President Trump’s alleged intervention in the case: “I want to stand up for Aaron Zelinsky, Adam Jed, Michael Marando, and Jonathan Kravis — the prosecutors on the Roger Stone trial,” Hart wrote in the post. “It pains me to see the DOJ now interfere with the hard work of the prosecutors. They acted with the utmost intelligence, integrity, and respect for our system of justice.” As I discussed in yesterday’s column, it is not clear that there was improper “interference” from Main Justice under the U.S. Attorneys Manual.
U.S. District Judge Amy Berman Jackson refused to bar witnesses due to their past political associations or viewpoints. This included a former Obama-era press secretary for the Office of Management and Budget who admitted to having negative views of Trump and whose husband worked at the Justice Department division. However, she maintained the stand that she did not have strong views about Stone. That was enough for Jackson and one can understand the reluctance to striking jurors in a city filled with politically active people.
However, the social media postings of Hart raise troubling questions as to whether these views were known or disclosed. What is clear is that no defendant associated with Trump would want such a juror sitting in judgment. This included a posting about the Stone case where she retweeted mocking dismissals of objections to Stone’s treatment in a dawn raid. I was one of those raising such concerns. There is of course nothing wrong with holding the opposing view of that issue and Hart did nothing wrong in sitting on the jury absent some allegations of hiding or misrepresenting information.
Hart is a democratic activist who ran for Congress and referred to the President with a hashtag as “klanpresident.” More worrisome is her references directly to Stone, including a retweeted post, in January 2019, Bakari Sellers again raising racist associations and stating “Roger Stone has y’all talking about reviewing use of force guidelines.” She also called Trump supporters like Stone racists and Putin cronies. When profanities were projected on the Trump hotel, she exclaimed on Jan. 13, 2018, “Gotta love it.”
She also, on March 24, 2019, shared a Facebook post calling attention to “the numerous indictments, guilty pleas, and convictions of people in 45’s inner-circle.”
These and other postings have thus far been noted by Fox and more conservative sites but not many in the mainstream media. The question is why. What would be the response if an Obama associate was convicted on a jury with a foreperson who was a Republican activist with a long social media record criticizing not just Obama but supporting the prosecution of that associate?
This goes beyond political opposition and raises serious questions of bias, particularly the references to this defendant and his prosecution. It is not clear if the court was aware of these comments, but it would seem to raise disqualifying bias. What concerns me is that a high-profile case of this kind comes with the added burden for the court to assure both sides of a divided nation that the trial was conducted without even the hint of bias or animus from either the court or the jury. The selection of this juror clearly does not meet that burden.
Trump has already latched on to the controversy in tweets raising bias — a possible added rationale to be cited in his possible pardoning of Stone. He has also attacked the judge which, again, is highly inappropriate and entirely unwarranted.
I obviously come to these questions from the perspective of a criminal defense attorney. I would have been shocked if a court dismissed such commentary and required a defendant to be judged by someone who commented on his case before trial. The fact that Hart is also a lawyer would only magnify my concerns over her influence on the jury.
The new information raises a legitimate question for appeal, but the question is whether the district court will address the information. This case is still squarely before Jackson and would warrant a decision from the court. At a minimum, there should be a record for the appellate court in dealing with an obvious defense argument (assuming that the objection was preserved by the defense).
In Irvin v. Dowd, 366 U.S. 717, 722 (1961), the Supreme Court stated “the minimal standards of due process” demand a fair hearing before competent and impartial jurors. See also United States v. Tegzes, 715 F.2d 505, 507 (11th Cir. 1983) (citing Murphy v. Florida, 421 U.S. 794, 799 (1975)(“constitutional standard of fairness requires that the criminally accused have ‘a panel of impartial, indifferent jurors.’”). In cases like Pena-Rodriguez, the Supreme Court has held that statements in the jury room showing racial bias justifies reversal. The line is more blurry on political bias, but few cases involve a juror who previously discussed the defendant and his case.
What is missing is a transcript or record from the voir dire and what was asked and any objections made in the court. Under Rule 24, the government has six peremptory challenges and the defendant or defendants jointly have ten peremptory challenges for crimes punishable by imprisonment of more than one year.