Let He Who Is Without Bias Cast the First Stone

Holland & Hart - Persuasion Strategies

Holland & Hart - Persuasion Strategies

Roger Stone has now been sentenced, following conviction on seven counts of obstruction, false statements, and witness tampering. But for the political fixer and his legal team, the fight isn’t over. In a recent motion, they argue for a new trial, claiming that the jury’s foreperson showed bias in being an “anti-Trump activist,” who had Tweeted and posted many times against President Trump and in favor of the Mueller investigation. And this seems like another case of sharply differing realities. For many of the President’s supporters, and the President himself, it seems like an open-and-shut case: Obvious animus against the President on a case that touched on the President. So, new trial, right? But for legal observers and others familiar with the goals and process of voir dire, the answer is, “Not so fact.”

There are three reasons why the Stone jury foreperson with the political attitudes is not likely to justify a new trial. The first is that a generalized attitude is almost never enough to excuse a juror from serving. In practice, the question is not whether a person is free of opinions and experiences, but rather whether the person can commit to basing their decision on the facts they hear in trial (and the juror did so commit). The second reason is that both sides in this case seemed to tacitly agree that the case was not being tried as a referendum on Trump. And the third reason is that, in any case, it is the Defense attorneys’ responsibility to ask questions and to find out what is publicly available and exercise their strikes accordingly. As discussed in a recent post in Above the Law, in this case the Defense team knew that the eventual foreperson was a politically engaged Democrat, even learning that she had run for Congress, but they did not make a challenge for cause and did not target her for a peremptory strike. That said, the Motion for New Trial is yet to be ruled on, and there are still some lessons that this controversy can bring to the task of understanding and improving voir dire.

The Entire Voir Dire: 

First, it helps to understand what exactly was asked. As it appears on the case records in Scribd, this is the entire transcript of questioning by Roger Stone’s lawyer, Robert Buschel:

MR. BUSCHEL: Did you ever work for anyone in Congress?


MR. BUSCHEL: You’ve worked on campaigns for Congress people running for Congress?

PROSPECTIVE JUROR: I ran for Congress.

MR. BUSCHEL: You ran for Congress?

PROSPECTIVE JUROR: I worked on my own campaign.

MR. BUSCHEL: And you have friends who worked for other congressmen?


MR. BUSCHEL: Do you have any political aspirations now?

PROSPECTIVE JUROR: I don’t know, not federal.

MR. BUSCHEL: What might they be?

PROSPECTIVE JUROR: My home state in Tennessee. No local.

MR. BUSCHEL: Just recognize that there might be some media— What are your aspirations?

PROSPECTIVE JUROR: I served, can I just say I served in political office in Memphis in a local office on the school board. So I, one day I wake up and say I run for, you know, office again in Memphis to impact education. One day I wake up and say no way in the world would I do that. So I don’t have an immediate plan to run for office.

MR. BUSCHEL: The fact that you run for an office, you’re affiliated with a political party. Roger Stone is affiliated with the Republican party, Donald Trump. You understand what I’m saying and getting at?


MR. BUSCHEL: How do you feel about that?

MR. KRAVIS: Objection.

THE COURT: Can you make that question a little bit more crisp? Is there anything about his affiliation with the Trump campaign and the Republican party in general that gives you any reason to pause or hesitate or think that you couldn’t fairly evaluate the evidence against him?


MR. BUSCHEL: Thank you, ma’am.

THE COURT: All right, you can step out.

(Prospective juror leaves courtroom.)

THE COURT: Mr. Buschel, you have a motion?


THE COURT: Okay, let’s bring in the next juror.

The Hazards of Dancing Around the Edges

Now, in the lawyers’ defense, it is important to note that there was also a comprehensive questionnaire used in this case, and the results of these surveys are not public. So it is possible that the attorneys had more data to inform their choice and also possible that the Defense team could claim that the individual was not fully forthcoming in her questionnaire responses.

But just looking at the oral voir dire questions, it certainly seems that they were reluctant to dig in deeply on the views or experiences of this politically engaged juror. They asked if she wanted to run again and asked whether she worried about the media. Finally, in a fashion that was vague enough that it required the judge to step in, they came close to asking about how these views might affect the case: “Roger Stone is affiliated with the Republican party, Donald Trump. You understand what I’m saying and getting at?” Predictably, when the judge intervened, the question was converted from what should have been a good open-ended question (e.g., “How might your political views and experiences contribute to the way you view a case involving one of President Trump’s associates?”), into a closed-ended “Can You Be Fair” question, which then ends the inquiry.

Reason for Social Media Analysis

I haven’t seen evidence that the juror was especially shy with her views, or that she kept all of her social media set to private. Yet, a conservative blogger was apparently able to unearth social media posts that seemed to come as a surprise to the Defense team once the trial was over. “Now I don’t know if this is a fact,” the President commented with characteristic distancing, “but she had a horrible social media account. The things she said on the account were unbelievable.” If that is true, then it simply underscores the responsibility on the Defense team to have discovered this in advance in order to inform their exercise of strikes. As I’ve written before, social media analyses of potential jurors is now fairly routine and would certainly be called for in a high-profile case like this. If that wasn’t done, then it is no one’s fault but the Defense.

Reason to Voir Dire on Subjects the Trial Is Not Supposed to Be About

While I don’t know for sure, I suspect that the reason that both sides were reluctant to dig in too deeply into potential jurors’ views on Trump is that the trial was not supposed to be about Trump. The attorneys might have reasonably feared that they would be sending the wrong message if they signaled too great an interest in political views. But to me, that concern can be counter-productive. There should be a difference between what the trial is about (Stone’s guilt or innocence on the charges, and that’s it) and what the voir dire is about (anything that could impact jurors’ ability to focus on just the former). To me that says that attorneys should be able to take a broad approach in voir dire without worrying that they’re opening doors in the process. In contrast, by exploring views that are ancillary to the charges but which could inappropriately influence jurors, attorneys are trying to use voir dire, and consequent strikes, in order to close those doors. It is correct that the trial is not about whether the jurors like or dislike Trump, but voir dire ought to be able to explore that, if only to identify those for whom the like or dislike is so extreme that it could not be bracketed off.

Ultimately, we will have to wait and see if Roger Stone gets a new trial, or if he gets a pardon. But in the meantime, it is worth noting that his bid for the new trial is based on a view of bias that is too broad and too subject to the Defense attorneys’ control to be the basis for a do-over.


Image credit: Flickr Creative Commons, DonkeyHotey

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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