Amy Berman Jackson, 2010. Photo: Diego M. Radzinschi/The National Law Journal

U.S. District Judge Amy Berman Jackson of the District of Columbia started off a Tuesday hearing on Roger Stone's bid for a new trial by reading out loud tweets from President Donald Trump alleging juror misconduct in the criminal case and later made a stunning announcement that the majority of the jury that Stone's lawyers and Trump now claim were tainted were just feet away in the jury room.

Hashtags referencing hip-hop group "Public Enemy" were described on the stand by the foreperson of Stone's jury, and she was asked to explain emojis she had posted on social media in the early morning hours before the Stone verdict came down. Even one of the prosecutors who withdrew from the case over Main Justice's interference in the sentencing recommendation briefly took the stand to describe some pretrial interactions between the trial team and Stone's defense counsel.

At the heart of the matter are social media posts from the foreperson of Stone's trial that negatively weigh in on the president. And Trump, in turn, has negatively weighed in on the foreperson—including with a tweet that landed during the middle of the hearing.

"There has rarely been a juror so tainted as the forewoman in the Roger Stone case. Look at her background. She never revealed her hatred of 'Trump' and Stone. She was totally biased, as is the judge," the president tweeted. Jackson did not specifically reference that tweet during the hearing.

Throughout the four-hour-long hearing, Jackson described a case that has become "unprecedented," laying out the harm she feared the jurors could face if they are further identified, due to the attention that's being drawn by the president to the case.

"I think without question then that this is a high publicized case, and in a highly polarized political climate in which the president himself has shone a spotlight on the jury through his Twitter platform … the risk of harassment and intimidation of any juror who may testify later this afternoon is extremely high," the judge said near the start of the hearing.

And she said she feared that, by potentially exposing further personal details about jurors' identities, "an individual who may be angry about Mr. Stone's conviction or other developments on the news may soon take it out on them personally."

Jackson announced that the rest of the hearing would be partially public: The courtroom would be sealed to all but the attorneys involved, Stone and immediate court personnel, but audio would be fed into the courthouse's media room and another courtroom.

She blocked anyone from saying any of the jurors' names and even their numbers from the trial, indicating that a supplemental sealed filing by the Department of Justice that morning had raised even more red flags for her.

Once the hearing began, one of the new Justice Department attorneys on the case, J.P. Cooney, said that he had supervised Stone's criminal prosecution within the U.S. Attorney's Office for D.C., which took over the case once special counsel Robert Mueller's probe ended.

And he described some of the office's internal workings, like who had access to juror questionnaires and how they were shared with Stone's defense counsel. Those efforts were apparently coordinated through Jonathan Kravis, who resigned from DOJ after Main Justice officials overrode his and the rest of the initial trial team's sentencing recommendation for Stone.

It was at that point that Michael Marando, one of the original Stone prosecutors who also withdrew from the case in protest, briefly became a witness in a case he had once prosecuted. "It's coming back to me now, a lot has happened," Marando said as he was asked to recall some interactions with defense counsel, but soon after he was dismissed.

Seth Ginsberg, whom Stone only recently added to his defense team ahead of sentencing, led the presentation of the arguments to Jackson. The judge at one point described the language in the filings in seeking a new trial as having an "accusative, harsh tone."

Ginsberg said he did not intend to offend the court; Jackson said she wasn't offended, but that it may have taken away from his arguments. "It may be the New York style," the judge said, referencing the state Ginsberg typically practices in, but acknowledged there are "plenty of D.C. lawyers" who do it too.

Stone attorney Robert Buschel also told Jackson that while the defense team had hired jury consultants ahead of the trial, they did not do any online searches for the individuals included in the potential jury pool. He said there were additional costs and logistics that went along with that kind of vetting, and that it "just didn't happen."

Jackson asked him if the defense team had access to the internet at the time. Buschel replied that he did.

Ginsberg and the judge also butted heads over the questioning of the juror during jury selection, after the lawyer suggested that the judge had stopped Buschel from questioning her further during voir dire.

Jackson, sounding increasingly frustrated, laid out exactly what had happened according to the transcript: The defense asked a question, prosecutors objected and Jackson rephrased it. Buschel then did not ask any more questions.

"I did not stop him," Jackson said, loudly and directly. Ginsberg said he misspoke.

Roger Stone departs Federal Court after attending his arraignment hearing on Jan. 29, 2019. Photo: Diego M. Radzinschi / NLJ

After hearing arguments from counsel from both sides, Jackson then presented a twist: She invited the entire Stone jury to the hearing, and 11 of them, including the foreperson at the heart of the matter, were in the nearby jury room.

And Jackson then called out two of the jurors to take the stand in the case they had delivered a verdict in, about the integrity of their fellow jurors.

After their testimony, Jackson said she felt no need to call any other jurors, after she had already suggested that she was deeply skeptical about Stone counsel's claims that the foreperson had shared outside information about the case with other jurors during the trial in violation of court orders.

The final person to appear on the stand was the foreperson of the trial. Jackson and Ginsberg both went through the social media posts with her, and at one point the judge questioned the relevancy of the lawyer's questions, noting they were posts about Trump and not Stone explicitly.

"Having an opinion of the president and some, maybe even all of his policies," Jackson said, didn't necessarily mean the foreperson could not fairly serve on the jury.

During her testimony, the foreperson pointed to an answer she gave on the juror questionnaire saying she did have opinions about those included on a list of people who may come up during the case, which included Trump.

She had also written on the form that she may have made social media posts about Stone, but that she didn't remember any specifically.

"I was trying to be honest," the foreperson testified. "I post and tweet a lot of stuff, I absolutely was not trying to downplay anything."

The testimony even veered into describing references to the rap group Public Enemy, over hashtags the foreperson had made on a post about Trump. 

"What does 'Chuck D tried to tell us' mean to you?" Ginsberg asked the foreperson of a hashtag she wrote about the Public Enemy group leader. She explained that it related to another hashtag on that same post, the title track from one of the group's albums, "Fear of a Black Planet."

Tuesday's hearing was held just days after Jackson sentenced Stone to 40 months in prison. The judge had delivered a lengthy and passionate speech Thursday, highlighting the importance of upholding institutions created by the Constitutions, which she said Stone sought to undermine with the false statements that he was convicted of making.

However, she still sentenced him to less time than both the Justice Department and sentencing guidelines had suggested was appropriate.

Stone late Friday filed a motion to disqualify Jackson from overseeing his case, alleging that her statements on the "integrity" of his jury at his sentencing meant she could not fairly rule on his sealed motion for a new trial, which apparently involves allegations of bias against one juror. 

Jackson quickly ruled against him, writing in a rare Sunday night opinion that "given the absence of any factual or legal support for the motion for disqualification, the pleading appears to be nothing more than an attempt to use the Court's docket to disseminate a statement for public consumption that has the words 'judge' and 'biased' in it."

That filing briefly came up during Tuesday's proceedings, with Jackson saying that she didn't hold it against Stone and his counsel. 

 

Read more: 

At Roger Stone's Sentencing, an Apology From the Justice Department

'Flagrant Disregard for the Institutions of Government': Stone Sentenced to Over 3 Years

'A Loss to the Pursuit of Justice': Praise for Roger Stone Prosecutor Who Resigned

The Hardest Thing About Being a Judge? What Courts Say About Sentencing.