Roger Stone's judge must recuse herself

Mark Penn lays out a powerful case that Judge Amy Berman Jackson, who is hearing the cases of both Roger Stone and Paul Manafort, and who just imposed a gag order on Stone (but not the prosecution or media that have been vilifying him) must recuse herself from Stone's case.

His first reason that Judge Jackson must recuse herself is that she should never have been assigned the case in the first place.  It was not a random selection process, the norm for assigning cases.

[T]he defendant is correct that Mueller did use a technicality to draw this judge — claiming that the Stone and the Manafort cases were parts of the same case.  It's obvious that they are not, and that there are absolutely no overlapping facts in the case of Manafort's unreported lobbying and the issues surrounding Stone's testimony to Congress.

That is not Judge Jackson's responsibility, but the second reason is:

[I]n slapping a gag order on Stone, the judge said point-blank and to the world that she did not find him or his apology "credible."  She had no real basis for that conclusion about his state of mind, and her declaring it in open court does more to prejudice the jury pool than 100 photos of the judge posted online.  She called him a liar in a case about lying.  She convicted him right then and there. ...

Judge Jackson's argument that Stone could prejudice the jury pool, given what's gone on in this case, is absurd.  It's a lame excuse to insulate the judge from legitimate criticism.  The special counsel arrested Roger Stone with guns drawn, amphibious units and bullet-proof vests, as though they were attacking a terrorist compound, not a Florida retirement home with a dog and a deaf wife.  And the cameras from CNN were there, in advance, to capture the whole event.  It was broadcast around the world.  Now, that's what I would call prejudicial.

Perhaps there are some cases in which a defendant might actually taint the jury pool but, given the massive media coverage of this case and the general weight of media against Stone, it's not a serious argument that Stone will be the one affecting the jury pool by defending himself against an avalanche of criticism.

Judge Jackson has a questionable history in this regard:

For the second time, Judge Jackson has made clear that she views it as her prerogative to jail people for what they say about her and her court.  I didn't know we did that in America — Russia and China, definitely.  If, through this case, I am learning about this power U.S. judges believe they have to immunize themselves from criticism under the guise of protecting the jury pool, then that's a good thing because this power has hidden in the shadows until now.

Penn acknowledges that Stone's behavior in posting a picture of Judge Jackson with what looks like a crosshairs behind her (not over her face) was "over the top."  Frankly, Stone has a long history of being over the top, for he is a showman of sorts, someone who exaggerates, provokes, and behaves outrageously as a strategy.  I have no attraction or sympathy for him on the merits of his behavior and persona, but even unsympathetic figures (or especially unsympathetic figures) deserve the protection of the First Amendment.

Penn has a good point here:

The Supreme Court just ruled unanimously that the constitutional ban on unreasonable asset forfeiture applies not just to federal officials but to the states as well.  It was a ruling that curbed the arbitrary, selfish exercise of power by officials to seize property far beyond the crime in a case.  I hope the court will rule that the First Amendment that says "Congress shall make no law abridging freedom of speech" applies equally to federal judges and that we don't gag and jail people for tasteless social media posts that bear legitimate criticism of the legal system.

I know I am not alone in waking up to the abuse that our justice system is capable of, when the Department of Justice is politicized and judges place themselves above the Constitution.

Judge Jackson should recuse herself.  If she fails to do so, Stone has grounds for appeal to the Supreme Court.  I don't think Judge Jackson would like that.

Hat tip: Mark J. Fitzgibbons

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