Roger Stone filed a motion Friday night asking Judge Amy Berman Jackson to recuse herself from his case after she praised the “integrity” of the jury that convicted him when she pronounced his sentence of 40 months in prison on Thursday even though she had Stone’s motion for a new trial based on juror bias pending in front of her. Stone was convicted in the Mueller probe last year on seven charges of lying to Congress, obstruction and witness tampering.
In the motion for recusal, Stone calls out Jackson for saying during the sentencing hearing, “Sure, the defense is free to say: So what? Who cares? But, I’ll say this: Congress cared. The United States Department of Justice and the United States Attorney’s Office for the District of Columbia that prosecuted the case and is still prosecuting the case cared. The jurors who served with integrity under difficult circumstances cared. The American people cared. And I care.”
Stone’s motion for a new trial was filed under seal, however the recusal motion indicates it is about juror bias, a likely reference to recent reports about jury forewoman Tomeka Hart.
An expert analysis by George Washington University law professor Jonathan Turley of the voir dire of Hart can be read at this link at The Hill. Turley’s conclusion:
…It certainly seems Hart had no place on the Stone jury. The Supreme Court has repeatedly declared that the “minimal standards of due process” demand “a panel of impartial, indifferent jurors.” Hart’s record suggests little that is impartial or indifferent. She was perfectly within her right to engage in such commentary and protests — but she had no right to sit in judgment of an associate of the president after her public declarations. Her participation raises serious arguments for setting aside the verdict, from the possibility of ineffective counsel to the denial of due process.
The burden now is on Judge Jackson to hold a hearing on this matter and address the possible need for a mistrial. And one thing will be clear: Judge Jackson, in the words of Juror No. 1261, does not “gotta love” any of this.
Defendant, Roger J. Stone, Jr., files this Motion for Judicial Disqualification, pursuant to 28 U.S.C. § 455(a), in advance of oral arguments related to Defendant Stone’s Motion for a New Trial (Dkt. # 309-2).
The issue at hand arises from the Defendant’s pending Motion for a New Trial (Dkt. # 309-2) and statements made by Judge Berman-Jackson during the Defendant’s Sentencing Hearing on February 20, 2020. Stone’s argument for a new trial rests on newly discovered information indicating that there was juror misconduct during Mr. Stone’s trial, thereby depriving him of his constitutional right to be tried by an impartial jury. Defendant’s Motion has not been ruled on, and in fact, the Defendant’s Reply to the Government’s Opposition is not yet due, nor has a hearing been set. The Court must still consider whether any juror interviews are appropriate in light of the allegations. However, given the statements made by Judge BermanJackson during the Sentencing Hearing, recusal under 28 U.S.C § 455(a) is warranted in order to protect the integrity and impartiality of the judicial system.
28 U.S.C. § 455(a) states, “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” “[A] showing or appearance of bias or prejudice sufficient to permit the average citizen reasonably to question a judge’s impartiality is all that must be demonstrated to compel recusal.” United States. v. Heldt, 668 F.2d 1238, 1271 (D.C. Cir. 1981).
The goal of section 445 is to “avoid even the appearance of partiality.” Liljeberg v. Health Servs. Acquisition Corp. 468 U.S. 847, 860 (1988). “In addressing the mere appearance of partiality, section 455 addresses not only fairness to the litigants but also the public’s confidence in the judiciary, which may be irreparably harmed if a case is allowed to proceed before a judge who appears to be tainted.” In re School Asbestos Litigation, 977 F.2d 764, 776 (3d. Cir. 1992). “It has been argued that any ‘public comment by a judge concerning the facts, applicable law, or merits of a case that is sub judice in his court or any comment concerning the parties or their attorneys would raise grave doubts about the judge’s objectivity and his willingness to reserve judgment until the close of the proceeding.’” United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir. 2001) (quoting William G. Ross, Extrajudicial Speech: Charting the Boundaries of Propriety, 2 GEO. J. LEGAL ETHICS 589, 598 (1989)). Disqualification under section 455(a) is appropriate even after a final judgment is entered in certain situations. See Microsoft Corp., 253 F.3d at 116.
Stone’s Motion for New Trial is directly related to the integrity of a juror. It is alleged that a juror misled the Court regarding her ability to be unbiased and fair and the juror attempted to cover up evidence that would directly contradict her false claims of impartiality.
Nevertheless, at Mr. Stone’s sentencing, the Court emphatically stated its views regarding both of the defendant and the jurors in his trial:
“Everyone depends on our elected representatives to protect our
elections from foreign interference based on the facts. No one
knows where the threat is going to come from next time or whose
side they’re going to be on, and for that reason the dismay and
disgust at the defendant’s belligerence should transcend party. The
dismay and the disgust at the attempts by others to defend his
actions as just business as usual in our polarized climate should
transcend party. The dismay and the disgust with any attempts to
interfere with the efforts of prosecutors and members of the
judiciary to fulfil their duty should transcend party. Sure, the
defense is free to say: So what? Who cares?” T. 87.
“But, I’ll say this: Congress cared. The United States Department of
Justice and the United States Attorney’s Office for the District of
Columbia that prosecuted the case and is still prosecuting the case
cared. The jurors who served with integrity under difficult
circumstances cared. The American people cared. And I care.”
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. Moreover, the categorical finding of integrity made before hearing the facts is likely to “lead a reasonably informed observer to question the District Judge’s impartiality. Public confidence in the integrity and Impartiality of the judiciary is seriously jeopardized when judges…share their thoughts about the merits of pending…cases.” Microsoft Corp., 253 F.3d at 114-115 (D.C. Cir. 2001). The premature statement blessing the “integrity of the jury” undermines the appearance of impartiality and presents a strong bias for recusal.
The Court should grant this Motion for Judicial Recusal based on the arguments presented above.