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Juror 1261 in Roger Stone's case: Was justice undone?

She was Juror No. 1261, and her examination by the federal court and counsel before the trial was anything but notable. And that is precisely the problem.

Juror 1261, we now know, was Tomeka Hart. Her identity would have remained publicly unknown except for a public statement she made after the Department of Justice (DOJ) rescinded its initial sentencing recommendation for Trump confidant Roger StoneRoger Jason StoneTrump grants clemency to five nonviolent offenders Trump remarks put pressure on Barr DOJ veteran says he's quitting over Barr's 'slavish obedience' to Trump MORE. In the midst of the firestorm of allegations of political interference, Hart disclosed that she was the foreperson on the Stone jury and gave a full-throated defense of the trial prosecutors: “It pains me to see the DOJ now interfere with the hard work of the prosecutors.” 

That statement led many people to Google her name, and what they found was a litany of postings not only hostile to President TrumpDonald John TrumpIvanka Trump, Jared Kusher's lawyer threatens to sue Lincoln Project over Times Square billboards Facebook, Twitter CEOs to testify before Senate Judiciary Committee on Nov. 17 Sanders hits back at Trump's attack on 'socialized medicine' MORE and his administration but also specifically commenting on Stone and his arrest — before she ever appeared for jury duty.

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I have previously written about how I believe that the DOJ was correct in its rejection of the absurdly high recommendation of seven to nine years in prison for Stone. However, there are legitimate questions that must still be addressed on how the Justice Department came to that decision. Yet while cable shows exhaustively cover that story, there is an equally serious question as to whether the conviction itself, rather than the sentencing recommendation, should be reevaluated.

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.

In addition to her prior statements about Trump, his associates and this case, Hart is a lawyer. That only magnifies concerns that any bias on her part may have had a more pronounced influence on her fellow jurors.

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In fact, except for a jury pool composed entirely of House impeachment managers, Hart would appear to be a standout for a peremptory challenge by the defense team over bias. That is why the most surprising aspect of this story is not the review of her public statements but the review of her examination before trial. The brief examination in the voir dire hearing shows that Hart did disclose her ties to the Democratic Party. U.S. District Judge Amy Berman Jackson asked if Hart’s political history would prevent her from being fair, and Hart assured her it would not. 

While Hart’s answers on the jury questionnaire remain sealed, Judge Jackson noted, “You've also indicated a fair amount of paying attention to news and social media, including about political things?” Hart does not volunteer that she did far more than “pay attention to news and social media” and was, in fact, an anti-Trump protester and social media critic.

Jackson seemed unaware of anything more than Hart’s following the news and asked if anything that Hart saw would affect her views. Hart again did not mention her protesting or public commentary and said she could not think of anything that would cause bias — “nothing that I can recall specifically. I do watch, sometimes paying attention but sometimes in the background, CNN. So, I recall just hearing about him being part of the campaign and some belief or reporting around interaction with the Russian probe and interaction with him and people in the country, but I don't have a whole lot of details. I don't pay that close attention or watch C-SPAN.”

She never mentioned that she specifically discussed Stone’s arrest and the objections to his treatment during that arrest as well as denouncing all of the associates of Trump as a virtual criminal enterprise.

Stone’s counsel, Robert Buschel, also asked a few questions but was either entirely uninformed or utterly incompetent. Buschel only asked about Hart being a Democrat who ran for Congress. The examination by the defense amounted to less than two pages and roughly 250 words of exchange with Hart. It seems most likely that Buschel did not have a clue about Hart’s actual political activism and commentary.

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That lack of knowledge is not surprising since multiple questions on the jury questionnaire allowed her to reveal her past protests and postings. For example, Question 30 asked whether she had any opinion about figures such Donald Trump. There also was Question 23 that asked whether she had "written or posted anything for public consumption about the defendant, the House Permanent Select Committee on Intelligence investigation into Russian interference in the 2016 presidential election, or the investigation conducted by Special Counsel Robert MuellerRobert (Bob) MuellerCNN's Toobin warns McCabe is in 'perilous condition' with emboldened Trump CNN anchor rips Trump over Stone while evoking Clinton-Lynch tarmac meeting The Hill's 12:30 Report: New Hampshire fallout MORE?" Questions 34 and 35 specifically ask about her prior knowledge or opinions of the Stone case, which she referenced on social media. It is hard to believe that she disclosed these public statements in her answer and was not questioned about them.

If this information was withheld by Hart, it raises a question about the veracity of her testimony and, more importantly, the fairness of the trial.

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.

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.