Smoke This, Roger. You… Lose. Go to Directly To… JAIL.

Some times, in the law, it is said that “the thing. . . speaks for itself“. This. . . is one of those times.

I’ll just leave the able Judge’s well-reasoned 81 page opinion here; tonight it denies old Rog’ a new trial on a host of grounds. [But for COVID-19 system-wide stagings of the surrenders of elderly felons, like Rog, he’d be in jail in two weeks.] Here’s some of the best bits:

. . . .The defendant [Roger Stone] must surrender for service of his sentence at the institution designated by the Bureau of Prisons at such time as he is notified by the U.S. Probation or Pretrial Services Office, but no earlier than fourteen days after the date of this order. Pursuant to 18 U.S.C. §3143(a)(2), the defendant remains on bond and he may voluntarily surrender. . . .

On November 15, 2019, the jury returned a unanimous verdict in the case of United States v. Roger J. Stone. It found the defendant guilty of seven crimes: one count of obstructing a Congressional investigation, in violation of 18 U.S.C. § 1505; five separate counts of making a false statement to the government in violation of 18 U.S.C. § 1001; and tampering with a witness, in violation of 18 U.S.C. § 1512(b)(1). . . .

[T]he President of the United States commented on Twitter: “This [a within Guidelines sentence recommendation] is a horrible and very unfair situation. The real crimes were on the other side, as nothing happens to them. Cannot allow this miscarriage of justice!”

The next day, reportedly at the direction of the Attorney General of the United States,5 the United States Attorney filed a “Supplemental and Amended Sentencing Memorandum,” advancing the position that a Guidelines sentence “could be considered excessive and unwarranted,” and that a sentence of incarceration “far less” than the Guidelines range would be reasonable under the circumstances. The pleading was signed by the Acting Chief of the Criminal Division of the U.S. Attorney’s office; each of the members of the trial team had either withdrawn from the case or resigned from the Office altogether [in protest]. . . .

The assumption underlying the motion – that one can infer from the juror’s opinions about the President that she could not fairly consider the evidence against the defendant – is not supported by any facts or data and it is contrary to controlling legal precedent. The motion is a tower of indignation, but at the end of the day, there is little of substance holding it up. Therefore, the request for a new trial will be denied based on the facts and the case law set out in detail in the body of this opinion. . . .

[E]ven if an opinion about the President should be, as Stone claims, automatically applicable to him by extension, 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. So the exhibits introduced by the defendant are consistent with, and do not discredit, the juror’s responses on the questionnaire. This case does not present the extreme situation where a prospective juror has a personal relationship to some aspect of the litigation, or to a participant in the case, that would make it highly unlikely that she could remain impartial. For these reasons, the evidence falls far short of [Roger Stone’s] sensational rhetoric, and the defense has not shown that the foreperson’s answers during jury selection were false.

There is a second reason why Stone’s motion fails: 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.” The information in the motion could have easily been found with the exercise of due diligence: by posing a few pointed follow-up questions in person, or by using the same search engines that quickly brought the public social media posts to light the day the juror identified herself to the rest of the world. The evidence the defense claims was critical was never “concealed” – it was a few clicks of a mouse away.

At the time of the trial, though, the defense made a strategic choice not to look for social media information. None of the seven lawyers or the two jury consultants on the defense team performed the rudimentary Googling that located this set of Facebook and Twitter posts. . . .

Onward — grinning.

नमस्ते

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