In the crush of news this week, one story was a bit buried. U.S. District Court Judge Amy Berman Jackson has denied former Donald Trump adviser Roger Stone’s motion for a new trial. It was an expected ruling but one that eviscerates the notion of an unbiased jury. I previously discussed the issue of the bias of the head juror and the need for a new trial. What is interesting is that Jackson does not seriously question her political bias but effectively gives a shrug and says “go to jail anyway.”

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.

As discussed in an earlier column, there were multiple points on the voir dire form where Hart could have revealed her prior statements and protests. This was not a small part of her life. Hart is a Democratic activist and critic of the Trump administration. She was the Memphis City Schools board president. Not surprisingly, given her political background (including a run for Congress), Hart has been vocal in public on her views of Trump and his associates.

She referred to the President with a hashtag of “klanpresident” and spoke out against “Trump and the white supremacist racists.” She posted about how she and others protested outside a Trump hotel and shouted, “Shame, shame, shame!” When profanities were projected on the Trump hotel, she exclaimed on Jan. 13, 2018, “Gotta love it.” On March 24, 2019, she shared a Facebook post — no longer public — while calling attention to “the numerous indictments, guilty pleas, and convictions of people in 45’s inner-circle.”

More worrisome are her direct references to Stone, including a retweeted post, in January 2019, from Bakari Sellers, again raising racist associations and stating that “Roger Stone has y’all talking about reviewing use of force guidelines.” She also described Trump supporters such as Stone as racists and Putin cronies.

As expected, the court simply brushed aside these clear examples of bias. Jackson wrote:

“The defendant has not shown that the juror lied; nor has he shown that the supposedly disqualifying evidence could not have been found through the exercise of due diligence at the time the jury was selected. Moreover, while the social media communications may suggest that the juror has strong opinions about certain people or issues, they do not reveal that she had an opinion about Roger Stone, which is the opinion that matters . . . To the extent one could consider any of the social media posts to be inconsistent with the juror’s questionnaire, they do not warrant a new trial because they do not meet the legal test for something that has been ‘newly discovered.’ [A] defendant seeking a new trial must establish that the information presented in his motion could not have been discovered earlier through the exercise of due diligence.”

I do agree with Judge Jackson that there is question of whether this information “could …have been discovered earlier through the exercise of due diligence.” The court notes

“the foreperson’s views were certainly not hidden at the time of jury selection. The juror’s personal affiliation with Democratic politics was set forth in her written answers. She said straight out that she had opinions about the “officials” on the list of people who might be mentioned in the case, and Donald Trump was the most prominent, if not the only, ‘official’ named.”

This was publicly available on social media and the question remains why the defense was not aware of the past expressions of political bias by Hart. One would have thought that Hart’s political past would have caused greater scrutiny of her past statements but, as I discussed previously, the transcript shows only a brief and matter-of-fact examination.

Yet, the opinion seems to work hard to avoid the obvious. It clearly demonstrates that even the failure to answer voir dire questions fully and truthfully will not be a barrier to service. Jackson has confirmed for future jurors that they can hide bias or past statements without fear of repercussions or a new trial. Even though Hart conveyed intense opposition to both Trump and his associates, Jackson dismisses the concern. Moreover, Hart’s answers seem clearly unresponsive and misleading on the questionnaire but Jackson again categorically and conclusorily dismisses the objections to her incomplete answers.

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 have been given a new trial. Otherwise, as here, the result makes a mockery of due process.

Here is the opinion: Stone decision

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