Roger Stone’s defense team moved to force the recusal of Judge Amy Berman Jackson from the case for bias. These motions have a very low success rate and this particular motion likely has an even lower likelihood of success. Jackson is a respected and experience judge. I actually was taken aback by a couple of her comments about the case but courts of appeal are extremely reluctant to force such recusals. Moreover, the main thrust of the motion is a statement about the jury which would be viewed as virtually standardized language for courts. Update: the Defense motion is available below.
The Stone team seems particularly aggrieved that Jackson said that the jury in the case had “served with integrity.” There is a pending motion for a new trial based on the alleged bias of the foreperson of the jury and the defense feels that the comment prejudges the merits of that motion.
The motion come up short in both its arguments and its persuasive weight. This is the gist:
“Recusal is required based on the entirety of the above and this statement in particular: “The jurors who served with integrity under difficult circumstances cared.” 2/20/20 Tr. 88:7-8 (emphasis added). Whether the subject juror (and perhaps others) served with “integrity” is one of the paramount questions presented in the pending Motion. The Court’s ardent conclusion of “integrity” indicates an inability to reserve judgment on an issue which has yet been heard.”
That is pretty underwhelming. I happen to agree that Stone deserves a new trial if these allegations are true. I have a column appearing in today’s edition of The Hill newspaper calling for such a new trial. An appellate court would like view such a statement as virtually rote for judges and not a commitment on the outcome of the pending motion. I would not have filed a motion of disqualification on the basis of that fleeting comment.
I am actually more concerned with another statement that Jackson made at the last hearing. Jackson declared that Stone “was not prosecuted, as some have claimed, for standing up for the president. He was prosecuted for covering up for the president.” A “cover up” suggests that Stone was hiding damaging information against Trump. The evidence shows that Stone was covering up aspects of his own conduct. He was open about his work and fealty to Trump. There was no evidence of any misconduct or criminal conduct by Trump himself. Jackson had to know that this sensational line would be the take-away from the hearing and it was.
Nevertheless, while injudicious, such a statement in isolation is not likely to warrant the removal of a judge by a court of appeals. Overall, Jackson conducted the trial and sentencing in an efficient and fair way. Some judges would have hammered Stone more severely for his poor conduct before the trial in his public comments, including the use of an image of the judge that many thought was threatening. She also handed down a sentence that was exactly what some of us predicted and less than half of what the prosecutors originally asked for.
The last forced refusal that I know of was for Judge Royce Lamberth on the the Indian Trust case. The D.C. Circuit cited Lamberth’s declarations in court that the “spite” of government officials led to “wrath,” “willful misconduct,” “iniquities,” “scandals,” “dirty tricks,” and “outright villainy.” The panel declared that “We conclude, reluctantly, that this is one of those rare cases in which reassignment is necessary.” That is a fair measure beyond thanking a jury in the midst of a motion for a new trial.
Most cases in the areas involve unanimous denials of motions for disqualification, though sometimes panel’s recognize the basis for the concerns. Thus, in the massive opioid litigation, the industry sought to disqualify U.S. District Judge Dan Polster who said that he was on a “personal mission” in the case and from the start seemed to declare his view of the merits. The Sixth Circuit still rejected by motion by admonished Polster that his comments in “isolation” could easily be taken for bias and added that
It admonished the judge to be more careful talking to the press and in court, saying his comments may “in isolation” appear to reflect bias though they did not warrant recusal. “We do not encourage Judge Polster to continue these actions,” particularly in “a case of such enormous public interest and significance.”
The motion will be denied and the defense probably has no expectations to the contrary. The motion is a shot across the bow for the court and preserves the question of bias for appeal. It is all setting up for the most important decision in the case on how the court will deal with what appears to be a valid juror bias motion.
Here is the motion: