Jury Must Nullify in Roger Stone Trial

If the current pre-trial proceedings stay on track – and there is nothing going on right now to suggest they won’t – Roger Stone will be going to trial in less than 100 days.

100 days before his life is put in the hands of 12 residents of the District of Columbia that he has never met – and, except for this trial, would probably never meet.

12 people who will decide whether Roger Stone spends his remaining years as a free man or as a prisoner in some maximum-security federal prison.

12 people who, given the demographics of Washington, DC, are much more likely to be registered Democrats rather than registered Republicans (As of March 31, 2016, 76% of the registered voters in D.C. were Democrats – and 6% were Republicans).

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How We Got Here

As noted in prior posts, Stone is facing seven criminal charges – six of which are related to his appearance before the U.S. House of Representatives Permanent Select Committee on Intelligence (HPSCI) on September 26, 2017.

The other charge is related to discussions that Stone had with Randy Credico, a comedian and talk-show host who was also subpoenaed to appear before the same committee.

During the course of his appearance before the HPSCI, Stone made several statements that Special Counsel Robert Mueller subsequently alleged are untrue.

As set forth in his indictment, here is what Stone is accused of doing:
– Falsely testifying that he hadn’t had email communications with any third parties about Julian Assange, the head of Wikileaks – and that he hadn’t had any communications via emails or text messages that referred to Assange;
– Falsely testifying that his August 2016 references to his “intermediary” with Assange were about Credico when, in fact, they were about Corsi;
– Falsely testifying that he did not ask Corsi to communicate anything to Assange – and that he did not ask Corsi to do anything on his behalf;
– Falsely testifying that he and Corsi did not communicate via emails and text messages about Wikileaks; and
– Falsely testifying that he never discussed any of his conversations with Corsi and Credico with any members of Donald Trump’s presidential campaign.

Mueller also claimed that Stone tried to interfere with Credico’s testimony before the HPSCI. As set forth in his indictment, Stone is accused of intentionally trying to persuade Credico not to appear before the HPSCI.

So, there we have it.

Roger Stone is accused of telling six lies during the course of his testimony before a Congressional committee – and of trying to convince Credico not to testify before that same committee (Credico did, in fact, show up – and pleaded the Fifth Amendment in response to every question he was asked).

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Evidence & Likely Outcome

Based on the pre-trial filings to date – and the prosecution’s projection that it will finish presenting its side of the case within 5-8 days – it would appear that this is going to be the proverbial open-and-shut case.

For purposes of this discussion, we can presume that the government has documents to support each of the six counts that concern Stone’s alleged lying. That means that in the normal course of events, Stone could easily be convicted on all six of those counts.

The seventh count is going to be a little harder for the government to prove – especially since Credico did show up to testify before the committee. So, unless Credico testifies that he thought Stone was trying to unduly influence him not to testify, Stone will have a good chance of being acquitted on that count.

But if that’s how this trial plays out, the presiding judge, U.S. District Court Judge Amy Berman Jackson, will still be able to impose what will amount to a death sentence on Roger Stone.

A death sentence for telling six relatively inconsequential lies to a Congressional committee.

It’s always a bad idea to lie to a Congressional committee or an FBI agent.

Especially when there are so many ways to avoid answering the question without lying.

“I don’t remember”.

“Not to the best of my recollection”.

“Not as far as I can remember”.

“I respectfully refuse to answer that question in accordance with the rights that are guaranteed to me by the Fifth Amendment to the U.S. Constitution”.

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The Jury Will be Voting “in the Blind”

Would all 12 members of jury vote to convict Roger Stone of any of the pending charges if they knew that doing so would mean that he will likely be sentenced to a term in prison for the rest of his life?

Probably not.

Even a jury made up of 12 Democrats would likely think that such a penalty is disproportionate to the charges.

The problem is that the jury will not be informed about the consequences of their decision.

So, the jury will be voting “in the blind” – without any knowledge of what sort of penalties might be imposed on Stone if they find him guilty on any of the charges he is facing.

And the jury, of course, will have absolutely no role in determining what Stone’s actual sentence will be. That will be left entirely up to Judge Berman Jackson.

Which means that the only way for the jury in this case to ensure that a huge injustice is not done is to utilize its power of jury nullification.

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What is Jury Nullification – and How Does It Work?

There are various types of jury nullification.

Sometimes a jury will vote to acquit because even though they have concluded the defendant is guilty, they think the applicable law(s) is unjust.

Other times, a jury will vote to acquit because they think the prosecutor has misapplied the applicable law in a case.

If jurors were informed about what the potential penalties were in criminal cases, there would likely be many more instances of jury nullification.

Jury nullification is not an official part of our criminal justice system.

But it is the result of two bedrock rules of that system:
(1) Jurors cannot be punished for reaching a “wrong decision”; and
(2) A defendant who has been acquitted of a charged crime cannot be tried again for that same crime.

Roger Stone’s case is a great example of when jury nullification would be appropriate.

Did he lie when he testified before the HPSCI Committee?

Probably so…or let’s even say absolutely so.

Does he deserve to spend the rest of his in federal prison because of his lies?

ABSOLUTELY NOT!

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Jurors Should Be Informed About Potential Sentences

The Stone case points up the need to change our criminal justice system so that jurors are fully informed of the consequences of their actions.

Why shouldn’t the jury know what the applicable sentencing guidelines will be if it chooses to find someone guilty of a charge?

Shouldn’t that be part of the jury’s deliberative process?

Wouldn’t at least some members of Stone’s jury vote differently if they knew that he was facing 50 years in prison instead of 5 years?

What is the rationale for not giving that information to jurors?

If we’re going to allow jurors to make life-altering decisions regarding defendants, shouldn’t we give them as much information as possible to do their jobs?

What say you, Frank Report readers?

Finally, even one individual juror can vote to acquit and hang the jury. This is entirely fair and part of our system. The sole purpose of requiring an anonymous jury to convict or acquit presupposes cases of hung juries. Provided jurors vote their conscience, they have the right to not reach unanimity.

Some of the most famous cases of jury nullification were hung juries. And that may be the best we can expect in Stone’s case.

No doubt the judge will order the jury to go back into deliberations and reach unanimity if it looks like there will be a hung jury, but she cannot punish a juror for his or her verdict if it is in accordance with their conscience.

This is the sole purpose for juries, not judges rendering verdicts. That sometimes the law or its application is unfair and the jury is our safeguard against it,

This is why Thomas Jefferson wrote that the jury is more important than the right to vote:

“Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative. The execution of the laws is more important than the making [of] them.”

Take a moment to understand that Jefferson said jury nullification is more important than voting since jurors have the final say on what laws can be enforced.

So in the case of Roger Stone, the jury or some one or more jurors should send a message to government that 50 years is inappropriate as a sentence and overcharging cannot continue in America.

It will send a loud clear message in what promises to be a hugely watched trial.