Roger Stone Should Be Given A New Trial, Not A Pardon

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Below is my column in the Hill newspaper on the calls for either a new trial or a presidential pardon for Roger Stone. I believe that he has a far greater claim to the former than the latter.

While I believe that the sentence of 40 months was longer than was warranted in this case, Judge Amy Berman Jackson sentenced Stone where some of us had predicted on the guidelines range. It was less than half of what the prosecutors originally asked for. Yet, the decision to go forward with the sentencing seemed odd given the substantial claim of juror bias raised by the defense in a pending motion. The other pending motion for disqualification is quite weak, but the motion for a new trial in my view should be granted. Although the odds are against Jackson ordering a new trial, it is clear that the foreperson has no business being on this jury and that her past comments raised significant and legitimate questions over whether Stone was given an impartial jury.

Here is the column:

With his sentencing this week, “agent provocateur” Roger Stone finally provoked himself into prison. However, his latest “performance art” may be nowhere near its conclusion. That is not because he has a “very good chance of exoneration,” as President Trump himself predicted. Stone has about the same chance of exoneration as he does of canonization.

Rather, it is not clear that Stone received a fair trial due to alleged juror bias or, even if his trial is now finished, whether it will become undone by a presidential pardon. If nothing else, one thing should be clear. Stone holds a far greater claim to a new trial than to a presidential pardon.

The trial of Roger Stone

The decision of Judge Amy Berman Jackson to move forward with his sentencing was a surprise to many of us, following disturbing reports of potential juror bias by the trial foreperson. It was a curious twist on the position of the Queen of Hearts in Alice in Wonderland, who declared, “Sentence first! Verdict afterwards.” In this case, the court decided to resolve the sentence before resolving if there was a valid verdict.

I have previously discussed the statements made by Tomeka Hart before she became the jury foreperson. She exhibited intense hostility against Trump and his associates and protested against the administration. She also expressed support for investigations of the administration and even discussed this case. Worse yet, the transcript of the voir dire hearing did not suggest that the defense counsel was aware of this history. Either she disclosed the information and defense counsel was less than effective, or Hart had withheld the information and was less than transparent.

Jackson may have two equally unappealing choices. First, the court could order a new trial, making this sentencing drama a meaningless exercise. Second, she could dismiss any concerns as speculative and refuse to take any action. Such a decision would make a mockery of the jury selection process. What is the value of voir dire if a juror with such alleged bias can find her way not just onto the jury but into the position as foreperson? If there was indeed a failure to disclose, despite multiple questions on the juror survey seeking such information, then the failure to act would make a mockery not just of the judicial process but of the court itself.

While Stone is hardly a sympathetic figure, and certainly garnered little sympathy from the court in his misconduct as a defendant, he may still be the victim here. It is unfair to assure defendants that they are entitled to unbiased juries but then shrug when the forepersons are found to have clear bias or failed to disclose material information in voir dire.

The court demands the impossible if it wants clear proof that, if not for such bias, the juror would not have voted to convict or that the jury would have reached a different conclusion in the case. If there is a due process right to an unbiased jury, then there should be a presumption in favor of the defendant when bias is uncovered. In other words, Stone should be given a new trial. I doubt that he would be exonerated, however, there remains a serious question of whether he was properly adjudicated.

Should he receive a pardon?

It is equally clear that Stone should not receive a pardon and, even if he did, Trump would be the last president who should grant it. I have been critical of the heavy handed investigation and prosecution of Stone. He has long cultivated the role of evil jester of American politics, from the Richard Nixon tattoo branded on his back to his relishing dirty tricks against opponents. He finally crossed the line by communicating with witnesses in the special counsel investigation by Robert Mueller.

While the prosecutors piled up counts, particularly over false statements, Stone was certainly a legitimate target and legitimately convicted. He is neither innocent nor contrite, the two common elements in pardons and commutations. Stone never tried to be remorseful. He was more focused on being useful. That was precisely the point of Jackson, who said Stone “was not prosecuted, as some have claimed, for standing up for the president. He was prosecuted for covering up for the president.”

While I found that statement to be sensational, it captured the image that Stone himself put forward in public. He maintained that he would never give evidence against the president. For Trump to pardon him would be legitimately denounced as a misuse of that constitutional authority. That would be the case even from someone who does warrant a pardon.

For instance, former national security adviser Michael Flynn holds a much greater claim to being unfairly prosecuted for a single false statement. His case became even more glaring when FBI officials, such as fired former acting director Andrew McCabe, were accused of lying to investigators but were not prosecuted. McCabe was even involved in the Flynn probe. Nevertheless, Flynn is not likely to receive much if any jail time. If he is to be pardoned, then it would be better left to another president who was not directly involved or targeted in the underlying investigation.

Trump could of course still pardon all of the defendants in the Mueller investigation. The Constitution leaves the pardon power to the discretion of presidents, and the history of such pardons has been neither pristine nor inviolate. President Bush pardoned Iran Contra defendants despite allegations of his own involvement in that scandal. President Clinton pardoned his own brother, as well as donor and fugitive Marc Rich, who was neither innocent nor remorseful. President Harding and his attorney general were accused of selling pardons. One such pardon was given to Ignacio Lupo, a top mob enforcer suspected in at least 60 murders.

Presidents have given pardons to political allies, donors, and friends. But none of that excuses adding another sordid pardon to this checkered history. Stone was not wrongly prosecuted given his actions. He was wrongly convicted, however, if reports of juror bias are true. That gives him a legitimate claim for a new trial, but not a presidential pardon.

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.

144 thoughts on “Roger Stone Should Be Given A New Trial, Not A Pardon”

    1. they want everybody to cop a plea. in fed court it’s “HALF OFF SALE, EVERY DAY” on plea deals

      dont want to take it? Roll the dice on a 93% conviction rate and you’ll miss out on that sale at sentencing

  1. Did that biased juror know the judge or the prosecutors socially?

    Normally that would seem unlikely, but she was politically active in the same political party that the judge and prosecutors were known to embrace.

    That seems like something Stone’s lawyers need to research now. This may be a bigger issue than previously suspected.

    1. Young,
      At a minimum, Tomeka Hart glossed over her antipathy toward Trump and Stone.
      Stone’s attorneys should have been aware of her sentiments if they had properly screened the jury pool.
      If Stone appeals, which seems likely, I think he needs a new set of lawyers.
      The ones he had at trial seemed to blow it when it came to awareness of Hart’s bias ( it may not have matter; Judge Jackson may have denied a motio to bounce Hart in any event).
      But if the current set of lawyers blew it, those same lawyers would be hard-pressed to claim that inadequate counsel failed to properly screen Hart.
      I don’t think these lawyers will handle any appeal(s), but we’ll see how this plays out.
      I would bet that there will be a pardon or communtation for Stone and Manafort within a year, but again, “we’ll see”.

      1. He will appeal if Jackson is egotistical enough to deny his motion for a new trial and he likely will win on appeal. Often appeals are handled by different counsel since it is an area where expertise is required.

        I don’t know how much latitude Jackson gave the defense counsel prior to the actual trial. Could be they were a bit cowed but I don’t really know.

        If I were them, however, I think I would have someone looking in on that juror’s social/political contacts and friends. Could be a dry hole, but wouldn’t it be something if the judge and juror were well acquainted and the judge knew all along how contaminated she was?

        Also, it was strange how that juror broke anonymity to come out in a full-throated defense of the prosecutors and the sentence they proposed. Have you ever seen something like that happen? Very odd. Also, as a lawyer that juror should have known that the verdict is the jury’s business but that the sentence recommendation most certainly is not. How well did she know those guys?

        Bet someone is angry with her; she kicked up a lot of dust.

        1. Young,
          I thought that Tomeka Hart “outed” herself as a juror,, but there are other claims that she was outed by others.
          If she came forward on her own, that’s on her. She’s free to do so, but there are good reasons why a juror might not want the kind of blowback that comes from a high profile case.
          I have seen jurors comment after convictions or acquittals, but not so much in high- profile trials.
          I think the odds that Jackson will grant a new trial are slim and none, so the motion for a new trial wil be resolved elsewhere.

          1. She came out like a banshee screeching her support for the prosecutors. As I said, bet someone on that side is angry with her.

            I

          2. they’re far above “none.” who knows what she will do, but there’s a chance alright

            and if not, yes, the appeals courts will have to do some serious spinning to avoid calling this mess reversible error

  2. Stone’s Defense Had Hired Consultants To Research Potential Jurors

    On Tuesday, Mr. Stone’s lawyers claimed that during jury selection, the forewoman concealed her level of knowledge about Mr. Stone and his relationship with the president, as well as animosity toward Mr. Trump. They said they only recently learned of her views by examining her posts on social media, even though they had hired consultants to help them identify potential jurors who could be biased.

    Edited From: “Judge In Roger Stone Case Case Warns About Attacks On Juror By Trump And Others”

    Today’s New York Times
    ……………………………………………………..

    This Roger Stone Juror controversy is a chilling example of how Trump and rightwing media gin-up bogus ‘scandals”.

    The facts of this case strongly suggest that Stone’s Defense team had ample opportunity to bump Tomeka Hart off the jury. But for some peculiar reason they neglected to scrutinize her social media posts. Nor did they question Hart in depth regarding her political views

    1. So, Seth, you are comfortable with a guilty verdict guided by a rabidly biased juror just because the defense failed to detect her lies?

      To the extent that there is a legal presumption on which all parties can rely it is that statements given under oath are true to the best of the person’s knowledge.

      If you have a juror who needs to be hooked to a polygraph to get the truth, you need to get a different juror.

      Stone’s trial was deeply corrupted. A new trial should be held, preferably before a judge who does not appear to be as flawed as that juror was. Even if the judge was fair, her reputation is no longer in her hands and any decision she makes in a new trial will be suspect.

      It would have been smart if she had mooted without comment the motion to recuse herself and gone immediately to ordering a new trial. But she does not even seem much smarter than a ‘Wise Latina’ and that is a low bar.

      I suspect that she agrees with the statements of the uncandid juror but is embarrassed that those views have been exposed. Tucker Carlson won’t let her sweep them out of sight.

      1. Young, I dont know who you are. But Roger Stones Defense team was given a list of 60 potential jurors and 3 days to research them. Stones Defense had even hired Consultants for that purpose. It was their failure to not eliminate Tomeka Hart. Hart was under no obligation to come right out and say, “I think Trump is a racist”. Jurors are not expected to be completely without opinions.

        1. Seth, Jurors are not expected to be without opinions, but they are expected to be honest.

          If this compromised judge will not order a new trial I bet the Court of Appeals will.

          Verdicts have rightly been set aside for far less cause.

          It is troubling that you are content to see a conviction in an unfair trial just because you think his attorneys could have done better. Incompetence of counsel is another reason a verdict and judgment can be set aside. I am not saying the attorneys were incompetent, but I suspect they did not get full value for what they paid their ‘jury experts’.

          The goal in these proceedings is to see, as well as we can, that justice is done; not that certain boxes have been checked. You seem more concerned with box checking, or perhaps politics, than with justice.

        2. “The facts of this case strongly suggest that Stone’s Defense team had ample opportunity to bump Tomeka Hart off the jury. But for some peculiar reason they neglected to scrutinize her social media posts.”
          *****************
          So if you have a marginal lawyer you should go to jail even if the jury is biased. Interesting view of catch-me-if-you-can justice you have there, Seth.

          1. Mespo,
            My guess is that if a lawyer shows up sober and stays awake (mostly) during the trial, that it’s very difficult to get a new trial based on ineffective counsel.

            1. Usually you have to show two things: 1. That the representation fell below accepted professional standards and that generally must be proven by expert testimony; and 2. But for the ineffective counsel the outcome would have been different. Hard but nor impossible. New trial because of the juror is more likely in this case.

          2. “So if you have a marginal lawyer you should go to jail even if the jury is biased.”

            Happens all the time.

            Still, give Stone a new trial and get on with other business.

  3. Great speech by our great US President, Donald Trump

    ###

    “The moment I stand in reverence before every human being and see God in him, that moment, I am free.”

    Said Donald Trump, quoting “the great religious teacher Swami Vivekananda,” in his biggest-ever speech— to a crowd of over 100,00 — in a cricket stadium in India.

    https://www.youtube.com/watch?v=qcNkPvyC2wc

    The speech begins around 1:27:00, and it begins with extolling the greatness of India, but let me pinpoint 18 seconds, when he deals with religion. He’s just said that Indians and Americans believe that “every person is endowed with a sacred soul” and this belief unites our 2 countries:

    Vivekananda connected the idea of seeing God in every person to one’s own individual experience of freedom, and Trump continues the leaps of reasoning in a quick sequence, and the last thing on this list gets a massive cheer from the crowd:

    1. Seeing God in everyone.

    2. Freedom!

    3. We’re all here to strive for greatness.

    4. Bollywood!

    ADDED: I had to look up the name Vivekananda, if only to spell it right (Trump carefully pronounces: Vee-vay-kuh-mun-nuum). From the Wikipedia article “Swami Vivekanda”:

    Swami Vivekananda (Bengali…12 January 1863 – 4 July 1902)… was an Indian Hindu monk… He was a key figure in the introduction of the Indian philosophies of Vedanta and Yoga to the Western world and is credited with raising interfaith awareness, bringing Hinduism to the status of a major world religion during the late 19th century. He was a major force in the revival of Hinduism in India, and contributed to the concept of nationalism in colonial India…. He is perhaps best known for his speech which began with the words – “Sisters and brothers of America …,” in which he introduced Hinduism at the Parliament of the World’s Religions in Chicago in 1893…. Vivekananda conducted hundreds of public and private lectures and classes, disseminating tenets of Hindu philosophy in the United States, England and Europe. In India, Vivekananda is regarded as a patriotic saint, and his birthday is celebrated as National Youth Day….

    The Parliament of the World’s Religions opened on 11 September 1893 at the Art Institute of Chicago as part of the World’s Columbian Exposition…. He was initially nervous… and began his speech with “Sisters and brothers of America!” At these words, Vivekananda received a two-minute standing ovation from the crowd of seven thousand…. Vivekananda quoted two illustrative passages from the “Shiva mahimna stotram”: “As the different streams having their sources in different places all mingle their water in the sea, so, O Lord, the different paths which men take, through different tendencies, various though they appear, crooked or straight, all lead to Thee!” and “Whosoever comes to Me, through whatsoever form, I reach him; all men are struggling through paths that in the end lead to Me.”…

    Parliament President John Henry Barrows said, “India, the Mother of religions was represented by Swami Vivekananda, the Orange-monk who exercised the most wonderful influence over his auditors.”
    The Orange-monk… and we have the Orange President.
    Vivekananda attracted widespread attention in the press, which called him the “cyclonic monk from India.” The New York Critique wrote, “He is an orator by divine right, and his strong, intelligent face in its picturesque setting of yellow and orange was hardly less interesting than those earnest words, and the rich, rhythmical utterance he gave them”…

    Vivekananda’s speeches at the Parliament had the common theme of universality, emphasising religious tolerance. He soon became known as a “handsome oriental” and made a huge impression as an orator….

    “I do not come”, said Swamiji on one occasion in America, “to convert you to a new belief. I want you to keep your own belief; I want to make the Methodist a better Methodist; the Presbyterian a better Presbyterian; the Unitarian a better Unitarian. I want to teach you to live the truth, to reveal the light within your own soul.”

    Vivekananda adapted traditional Hindu ideas and religiosity to suit the needs and understandings of his western audiences, who were especially attracted by and familiar with western esoteric traditions and movements like Transcendentalism and New thought. An important element in his adaptation of Hindu religiosity was the introduction of his “four yogas” model…. In 1896 his book Raja Yoga was published, becoming an instant success; it was highly influential in the western understanding of yoga….

    Many years after Vivekananda’s death [Nobel Prize-winning poet] Rabindranath Tagore [said], “If you want to know India, study Vivekananda. In him everything is positive and nothing negative…. His words are great music, phrases in the style of Beethoven, stirring rhythms like the march of Händel choruses. I cannot touch these sayings of his, scattered as they are through the pages of books, at thirty years’ distance, without receiving a thrill through my body like an electric shock. And what shocks, what transports, must have been produced when in burning words they issued from the lips of the hero!”

    If you want to know America, study Donald Trump. In him everything is positive and nothing negative.

    https://althouse.blogspot.com/2020/02/the-moment-i-stand-in-reverence-before.html

  4. “If nothing else, one thing should be clear. Stone holds a far greater claim to a new trial than to a presidential pardon.”

    Respectfully, there is no “claim” or entitlement to a pardon at all. Pardon’s are dispensed at the unfettered discretion of the president, meaning for a good reason, a bad reason or no reason at all beyond personal whimsy.

    In contrast, there are prescribed grounds for a new trial upon timely motion.

    The procedures are in no way analogous.

  5. Double Jeopardy was supposed to be illegal. And if that doesn’t work how about a third trial or a trial at a different level of government as happened to the California police officers and to Heidi Fleiss? Seems like the law is a playtoy at best for selected exempt from Constitutional law individuals

  6. Any chance that Tomeka Hart’s jury survey can be read? If she did not fully disclose her information, could she be prosecuted?
    BTW – I was on jury duty many years ago, and not once was anyone there asked for their photo ID.

    1. Courts are not only to be fair but should be seen to be fair. I think Jackson’s hearing on the motion for a new trial is wrapped in gag orders and secrecy. Stalin would understand.

    1. About as pedantic as it comes. A reading of chapters XIV and XV of “Leviathan,” written centuries ago, would edify you more and bore you less. There is only one Hobbes when it comes to political philosophy. Most everything and everybody else is just noise.

        1. DBB:
          If I wanted to learn about astrology and alchemy, I’d read the daft old monk. If I wanted to read about how law elevates humans from the State of Nature, I’d read Hobbes.

    2. lol that was all about stating the obvious. amazing that “scientists” get grants for “research” like that

      PS if a “society” does not have crimes and punishment, it is not a “society” it is a social collection of prehistoric savages

  7. Many, including Dr. T, have spoken of Judge Amy as a fair and balance judge. I think we now know that she is instead a partisan hack who is unable to fairly adjudicate the US legal system. We know that she ignored obvious bias and, even knowing it, sentenced Stone in order to attach a guilty finding to him even though the trial was obvioulsy and blantantly unfair. Just like Pelosi’s screams about her inadquate and failed impeachment. Judge Amy’s reputation is clearly now a stain on the American justice system and she should be impeached. She believes guilt is assigned by political association. She is an embarassment.

  8. Supreme Court Standard For Jury Qualification

    The Supreme Court standard for juror qualification is that they need not “be totally ignorant of the facts and issues involved. . . . It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.”

    Edited From: “Roger Stone Asks For New Trial In Sealed Motion One Day After Trump Accused Jury Forewoman Of Bias”

    The Washington Post, 2/14/20
    ………………………………………………….
    According to this standard, jurors need ‘not’ be free of opinions.

    1. FUNDAMENTAL ERROR. look it up. concealed juror bias grounds for new trial.

      hearing scheduled

      https://www.politico.com/news/2020/02/24/roger-stone-hearing-new-trial-motion-117126

      no new trial? ok, this conviction will then likely be reversed.
      —————————

      this is why its important that Trump NOT pardon Stone, assuming that he has a new trial or his conviction is reversed on appeal, which is actually LIKELY once the furor has died down.

      if he gets a new trial with an unbiased jury, and is convicted, well, probably not good for a pardon then either.

      I would say, only pardon if he doesnt get a new trial, or he doesnt get this reversed and then have a new trial. I dont see how they can avoid it– this case outcome would make a mockery of the court of appeals if they fail to state the obvious

      check back in a few months, this WILL play out before the election. and then you can admit i was right. let’s find out!

      1. Agree. Trump should not pardon Stone at this stage. Each day the judge, DOJ and judiciary mangle justice in this case the more obvious it is that we need Trump.

      2. From Kurtz’s Politico Story

        During Hart’s questioning in court before the trial, she mentioned her congressional run during examination by one of Stone’s attorneys, Robert Buschel. From the thrust of his questions, it seemed evident she had run as a Democrat. Stone’s defense did not move to excuse her at that time, although it’s unclear if they requested her dismissal at an earlier stage of the case.

        After Hart stepped forward to defend the prosecutors, conservative writers and activists noted that while she said in court that she didn’t recall anything specific about Stone beyond a vague connection to Donald Trump’s campaign and “the Russia probe,” she had actually retweeted a message about Stone shortly after his arrest at gunpoint at his Florida home last January.

        The tweet, from Democratic strategist and former South Carolina legislator Bakari Sellers, contrasted the outcry over the the large show of force during Stone’s arrest with responses to the shootings of eight African-American men by police in recent years. Hart does not appear to have commented on the message on Twitter beyond retweeting it to her followers.
        ……………………………………………..
        The tweet Hart sent had more to do with police responses than Roger Stone or the charges against him.

        The article also says it is “unclear” whether Stones Defense requested Hart’s dismissal earlier. And we keep seeing the word “unclear” in relation to Hart’s alleged deception.

    2. @Seth Earner. But what does the law say about deceptively hiding the truth when questioned about things, so that an over-zealous, left-wing, Deep-State, true believing, activist asset can be inserted on a trial with or without the knowledge of the Obama judge and the corrupt DOJ? Just curious.

  9. Rod R kicked things off when elmer fudd recused.
    _________________________________________
    That is not exactly the correct order of events.
    Because Sessions recused himself Trump had to find an acting AG that would do what he had wanted Sessions to do. He nominated Rod Rosenstein. It took a couple of months for the Senate to confirm. Then Rosenstein’s first week on the job he had Rod create the memo giving the reasons why Comey should be fired. Then Trump fired Comey based on that Memo. Then Rosenstein contacted Mueller about the Special Counsel job. Then 3 days later Trump, Rosenstein and Mueller met secretly in the oval office. Then the next day Mueller was appointed Special Counsel.

  10. Either the juror was dishonest about her bias, or the judge knew of it and did nothing, or both.

    Any one of these is sufficient to compel a new trial and discipline of the juror, or the judge, or both.

    Public confidence in the integrity of the judicial system is collapsing. Perhaps these robed bureaucrats are running to the end of their leash.

    1. Young, these guys are nuts. What they don’t understand is that political bias in outcomes may one day translate to political bias in outcomes against them

      In the meantime it will mean a sharpening of the tools used in this political conflict. When people feel that the system will throw the book at them no matter what, they often change the means they use to make their point.

      Students of low intensity conflict, will understand what i mean

      See, Stone was trolling from day one. This situation right now pleases him greatly, i guarantee. Stone understands guerrilla warfare.

      William Lind writes about “Fourth Generation warfare.” That’s where we are with this.

    2. “The end may justify the means as long as there is something that justifies the end.”

      – Leon Trotsky
      ____________

      Comrades in the communist party “…go along to get along.”

      One cannot obtain a desirable position in Hollywood, Washington, D.C., public schools, public fire departments, public police departments, public administration, etc., without being a member in good standing of the communist party.

  11. I gather Correct-the-Record has sent someone to help Peter out (unless Gainesville has yet another handle).

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