On the bias of DC courts and what to do about it
“When the District of Columbia is the venue for any prosecution with political overtones, Justice Department charging decisions must factor in the jury pool, which is solidly anti-Trump,” observed former federal prosecutor Andrew McCarthy…
Justice still awaits government officials who illegally leaked classified information to the media to defame Michael Flynn and Carter Page three years ago. The signers of unlawful FISA applications, including Comey and McCabe, have thus far escaped the “fair administration” of the law while their victim, Page, must live with the consequences of their malfeasance.
No, the only people who have paid a price are associates of Donald Trump. The justice system situated in our nation’s capital is toxic, destructive, and demonstrably unfair.
Barr should move any trial out of Washington—West Virginia or North Carolina, perhaps?—and at least give the accused a fighting chance. Contrary to what Barr’s detractors insist, that’s the only way to legitimately execute impartial justice and restore the rule of law.
It’s been a long long time since I knew much of anything about the rules governing the choice of court venues. And what I once did know is probably quite outdated. So I can’t say exactly what the obstacles would be to such a move. If the decision would be in the hands of the DC US District Court itself, that’s an obvious problem. I don’t know how much leeway Barr or anyone else has. A brief search for clarity on the subject has failed to yield any relevant information so far, but I invite anyone who knows something about it to post in the comments.
I did find this extremely prescient article from a year ago, about how biased Stone’s jury was likely to be. Please read the whole thing, but here’s an excerpt:
U.S. District Court in Washington chooses jury pools strictly from deep-blue D.C. boundaries, a place the president calls “the swamp.”
The Constitution’s Sixth Amendment mandates an “impartial jury.” His 12 jurors would not necessarily be a jury of Mr. Stone’s peers…
Washington has no elected Republican, the last GOP city council member leaving in 2009. Republicans make up just 6 percent of registered voters.
Hillary Clinton garnered 91 percent of the vote in 2016; Mr. Trump 4 percent…
“I think it’s hopeless for Roger Stone to find an impartial jury in Washington, but I’ve lost all faith in the U.S. justice system,” Michael Caputo, a longtime Stone friend and a former Trump campaign adviser, told The Washington Times…
Sidney Powell [who later became Flynn’s appeals lawyer, in June of 2019), an appeals court attorney who has criticized Mr. Mueller’s tactics, told The Times, “It will be impossible for Stone to find an impartial jury in Washington. He should be given a change of venue to some place in the heartland of the country. Washington has become a cesspool of political corruption.”
And this is how Paul Manafort’s request to move his trial fared:
Kevin Downing, who represents former Trump campaign manager Paul Manafort, asked that his trial in Alexandria be moved to Roanoke, Virginia…
U.S. District Judge T.S. Ellis III turned down the motion.
[ADDENDUM: See this for how jury selection objections went during Stone’s trial:
Jury selection got off to a slow start, with the judge denying most of the requests by defense lawyers to exclude potential jurors they fear could be biased against Stone.
At the outset of Tuesday’s proceedings, Jackson said she would not agree to strike prospective jurors just because they work for the federal government or because they have opinions about Trump.
That warning did not stop Stone’s lawyers from trying to strike the very first one, a woman who once served as a communications director for the White House Office of Management and Budget under Democratic President Barack Obama and whose husband is a Justice Department national security attorney.
‘She said credibly she doesn’t have an opinion on this case,’ Jackson said as she denied the motion.
The judge also blocked subsequent efforts by Stone’s defense to strike prospective jurors who worked for the IRS and the Securities and Exchange Commission, one of whom acknowledged she had voted against Trump.
‘Donald Trump is the chief executive for whom these individuals work,’ Jackson said.
Some prospective jurors were excluded because they indicated the could not put aside their dislike of Trump.
‘I think he’s very corrupt,’ one prospective juror said of Trump.
In other words, as long as a prospective juror said he or she could put aside his/her existing hatred of Trump and all his associates, it was okay with Jackson.
I don’t know whether there was also a request for change of venue. But my hunch is that there may have been – and that, if so, it was denied by Jackson.]
I think that in the case of a denial of venue change, the defendant and his lawyers might consider taking a page from the left, and challenge the legitimacy of the proceedings in every public venue they can access. Unless they create a stir, nothing will change,
Now I realize that that carries great risks for those who hope against hope to be shown impartiality, or at least some mercy and to get some portion of their lives back; but what in the final analysis has one got to lose when existential warfare is being waged against one by corruptly motivated persons acting as agents of the state?
There have to be political maneuvers available to those bold enough, or desperate enough, to try them.
As Trump asked: “What have you got to lose?” When the answer is “little or nothing”, then the path more or less reveals itself..
I have often wondered how any grand jury convened in D.C. could ever possibly be impartial in a case involving a public figure situated on the political right. More than 90% of political donations from the huge federal bureaucracy in Washington are made to the Democrats, while more than 90% of D.C.’s voters invariably choose the Democratic candidate.
I should at the same time acknowledge that in some of these cases it has been alleged that the defense counsel was utterly incompetent and negligent during voir dier.
I don’t know how many preemptory challenges the lawyers in these cases exercised, if any, nor how many for cause.
My guess is that, given the political situation there, and the fact that most lawyers are prudent, rule-followers, i.e., “cowardly”, from the point of view of an outsider who thinks that combativeness is the mark of a good representative, few to none for cause, and none for preemptory.
I’ll have to read up on what actually happened, and see how wrong I was. LOL
Federal Rules of Criminal Procedure
https://www.law.cornell.edu/rules/frcrmp
To start.
Well, we had a discussion about this in a previous thread. The sixth amendment would probably bar a Democrat having his trial moved out of D.C. However, it should be standard DoJ policy to not fight venue changes when the case involves a Republican being charged in the D.C., the NYC districts, or Eastern Virginia. Indeed, it should be DoJ policy to not fight venue changes requested by defendants whenever there is a political angle and the charging district is better than 2 to 1 voting the other way. I mean, this is simple justice we are talking about. I have lost faith in the system, and what is happening isn’t going to restore it.
Watch the Stone case- Judge Jackson should vacate the verdict and order a new trial, but I think it likely she won’t. She will make an appeals court do the work for her so that her political compatriots can once again rail against Republicans corrupting the system.
One probably constitutional fix for the sixth amendment issue would be hold the trial in D.C. but spread the jury pool over the states of Virginia and Maryland.
TITLE VI. TRIAL, Rule 24 Trial Jurors , https://www.law.cornell.edu/rules/frcrmp/rule_24
(b) Peremptory Challenges., (2) Other Felony Case. The government has 6 peremptory challenges and the defendant or defendants jointly have 10 peremptory challenges when the defendant is charged with a crime punishable by imprisonment of more than one year.
Just to be clear- a judge can remove a potential juror for cause- you don’t have to use a peremptory challenge in that case.
Rule 21. Transfer for Trial
(a) For Prejudice . Upon the defendant’s motion, the court must transfer the proceeding against that defendant to another district if the court is satisfied that so great a prejudice against the defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial there.
(b) For Convenience. Upon the defendant’s motion, the court may transfer the proceeding, or one or more counts, against that defendant to another district for the convenience of the parties, any victim, and the witnesses, and in the interest of justice.
(c) Proceedings on Transfer. When the court orders a transfer, the clerk must send to the transferee district the file, or a certified copy, and any bail taken. The prosecution will then continue in the transferee district.
(d) Time to File a Motion to Transfer. A motion to transfer may be made at or before arraignment or at any other time the court or these rules prescribe.
Let’s suppose you start with a pool of 100 potential jurors where the it is 95-5 people who vote Democrat. With 10 peremptory challenges, the defense for Stone can remove 10 Democrats, and the prosecution removes the 5 Republicans.
You can see the problem, right?
“Just to be clear- a judge can remove a potential juror for cause- you don’t have to use a peremptory challenge in that case.” — Yancey W.
Good information, but what if the judge doesn’t want to exercise that option, even if they think that maybe they should in pursuit of impartiality?
My next point is from memory and may be wrong, but I recall reading someone that wrote that Harry Reid’s partial nuclear option, a partial negating of the filibuster, was done specifically so that Obama and the Dems could pack the DC courts with their judges. Hmmm. Lawfare indeed.
sdferr:
That sidesteps the issue, though. I realize there are many grounds for transfer, but the decision about whether to transfer seems to be up to the supposedly biased court in the first place.
In Stone’s trial, for example, during the jury selection process:
In other words, as long as a prospective juror said he or she could put aside his/her existing hatred of Trump and all his associates, it was okay with Jackson.
I don’t know whether there was also a request for change of venue, but I would bet there was and that it was denied.
Neo, in political cases involving Republican defendants, the defense always asks for a change of venue. The government always opposes the request.
Yes, it is the judge’s decision technically, but if the DoJ had a policy of not fighting venue changes in particular instances, the judges would have a much harder time keeping the trials in D.C. as a practical matter- to refuse a venue change in that case become an appealable fact.
This morning I noticed a “Free Roger Stone” graffito on an alley wall a block away from UNM.
I couldn’t tell if the spray can artist was tongue-in-cheek, conservative or confused. But there it was.
I wholly agree neo, the decision by rule lays in the hands of the court (Judge) who is presumed to be but may not be (is not, apparently, here) impartial. At this point, the injured defendant’s recourse lays in an impartial appellate court, but oh lookie!, it’s still in DC! Fingers crossed he draws a decent bench.
Francis Menton talked about this bias just yesterday, though he referred back to an older essay he had written on the topic.
“She said credibly she doesn’t have an opinion on this case,’ Jackson said as she denied the motion.”
ABJ wanted her on the jury. And in Malcom Gladwell’s new book he presents data (science!) that judges aren’t great at making bail decisions or generally judging credibility.
The solution, of course, is move all those cases to the District of Nebraska. We have a beautiful federal court building with lots of hotels downtown.
Good idea, Cornhead! It seems clear that no defendant with real or alleged Republican/conservative ties can get a fair trial in DC.
Yancy’s suggestion to make DoJ policy non-contestation of motions to change venue looks like a damned good beginning, plausible at least while the Executive is Republican. Give it teeth: fire every prosecutor who won’t carry it out. But change of hands in the White House and we’re right back where we started.
Moving large Departments out of DC into the nation at large would appear to help some, though it isn’t clear how much. Still, even if it didn’t help cure this problem it may remain a worthwhile undertaking on other grounds.
Capture the House with Republican Reps and start impeaching bad jurists? Can’t hurt if successful, but probably shite if not resulting in convictions. So, best have airtight cases.
What else? I’m surely missing a lot.
This problem can be ameliorated with federal legislation.
1. Amend the boundaries of the federal district to include the surburban counties in Maryland and Virginia. Have the remainder of Maryland in the Baltimore district and the remainder of Virginia in a district headquartered in Richmond or the Tidewater.
2. Excuse federal employees from jury service, as well as quondam federal employees who’ve had a certain minimum of time on the federal payroll. While we’re at it, remove lawyers from the jury pool as well.
3. Have those courts and jury pools limited to the District of Columbia concern themselves only with violations of the territorial law code, not the U.S. Code, and with prosecution in the hands of a territorial attorney, not the U.S. Attorney’s office.
I think with these measures, you’d be no worse off than you would be trying someone in or around Boston or New York. Your real problem, though, is that liberals tend to be people of unjust disposition, and it’s who-whom for them all the way down.
Moving large Departments out of DC into the nation at large would appear to help some,
Why do you want to do that? You have to put the federal civil servants somewhere.
Keep in mind that >80% of those of the working population in the Washington commuter belt are NOT federal civil servants. There’s very little manufacturing in and around Washington, but that aside the distribution of that 80% between sectors is fairly unremarkable.
The thing is, Washington is a large city, and large cities are blue to a greater or lesser degree. Greater Houston, Greater Dallas, Greater Phoenix, and Greater San Diego have a broader spectrum of opinion than does (say), the San Francisco – Oakland – San Jose complex, but they remain blue. Loci with a large black population are also blue. Washington’s a big city with a lot of blacks.
Also, this case was the result of a synergy of two factors: bad luck in the jury pool and a bad judge.
The District should really consist of only the immediate Federal area — Congress, the Supreme Court, down Pennsylvania Avenue to the West Wing, and the Mall. The rest should be returned to Maryland, as the original DC area carved out of Virginia was returned to it in the nineteenth century. Jury trials of individual should be conducted in one of the states, since the restricted Federal area would have very few permanent inhabitants.
One probably constitutional fix for the sixth amendment issue would be hold the trial in D.C. but spread the jury pool over the states of Virginia and Maryland.
Again, Congress can set the boundaries of federal districts wherever they care to. There’s no reason to confine any court to the District of Columbia bar the local court which serves as an analogue for state courts elsewhere. Come to think of it, there’s no good reason to have a District of Columbia anymore. Retrocede the territory to Maryland.
The District should really consist of only the immediate Federal area — Congress, the Supreme Court, down Pennsylvania Avenue to the West Wing, and the Mall.
Why have it consist of anything? The concerns which motivated the formation of the District are moot as we speak.
Keep in mind that I lived there for decades. I lived amidst direct government employees and beltway services to government employees (derided at times as “beltway bandits”, among whose vast numbers we could count my own father).
But what’s the problem with moving the Agriculture Dept. to places agriculture happens? I don’t see why you object? Wichita doesn’t deserve the trouble, say? The Ag. lobbyists don’t deserve the agita? Of course, given my drouthers there’d be no Ed. Dept to move, but if there must be why not put it in Death Valley where it belongs, or barring a desert, atop Mt. Saint Helens where they can look down on everyone else?
Cornhead:
In fact, a biased person who wanted to render a biased decision to screw a political enemy would have a strong reason to falsely assert lack of bias. And of course it would be “credible.” There’s no way to know.
With Hart, she’s also a lawyer. So she would be likely to know exactly how to present herself “credibly” as unbiased.
I would guess that the only issue here that could sink her is whether she lied on her answers to the written questions she had to submit. We haven’t had access to those. But if she outright lied, that could be grounds for something.
If the judge weren’t biased, too.
Of course, there’s always an appeal. I don’t think much will come of it, although I suppose it could end up with SCOTUS. But the SCOTUS justices might not want to open up that particular can of worms. Roberts in particular has been reluctant to make waves.
But what’s the problem with moving the Agriculture Dept. to places agriculture happens? I don’t see why you object?
Agriculture’s not happening in Wichita. It happens in the countryside proximate to modest service centers. And it’s very dispersed.
My suggestion would be to dismantle the Department of Agriculture. Close down the Food and Nutrition Service and all it’s programs. You can add a modest increment on to the Earned Income Tax Credit. Shutter the rural development programs. When they’re not pork, they are things state governments can handle. Shut down the programs for subsidizing rural utilities. Rural electrificaiton was completed 70-odd years ago Shut down the “National Institute on Food and Agriculture”; it’s a grant distgributor, i.e. professor pork. Shut dow the Farm Service Agency and all its paraphenalia (the subsidies, the production controls &c.). Instead, create a bureau in the Department of Commerce that assembles schedules of countgervaling tariffs to protect our farmers against the other guy’s subsidies. Transfer the Forest Service and the environment works projects (soil conservation, &c) to the Interior Department. Send the food inspectorate to a new federal department devoted to health and safety regulation. Send the other regulatory bureaux to a new federal regulatory department concerned with vendor-to-vendor and vendor-to-consumer transactions across a variety of industries. Send the veterinary and botanical service to the Interior Department or perhaps to a health and safety department. Send the in-house research service to a new federal department that houses in-house scientific services like the national laboratories and NASA. Send the statistical collection services to the Commerce Department. Have the state governments take over extension services. Transfer the export promotion services to the State Department or the Commerce Department.
But what’s the problem with moving the Agriculture Dept. to places agriculture happens
In New York, about 3/4 of all state employees are field employees, not hq employees stationed in the capital. . If I’m not mistaken, the proportion for the federal government is higher.
With Hart, she’s also a lawyer. So she would be likely to know exactly how to present herself “credibly” as unbiased.
She has a law degree and was perhaps admitted, but I think she’s earned her keep as an NGO functionary.
Nice fantasy Art Deco. No, really, both nice and a fantasy. Which of course I’m not telling anything you don’t already know. Still, we’ll write letters to Senators urging their support. Heh.
Yancey Ward,
There is no “constitutional fix for the sixth amendment issue” because the democrats adamantly oppose actual “constitutional fixes”.
This situation is not happenstance, it is the result of design.
“when a long Train of Abuses and Usurpations, pursuing invariably the same Object, evinces a Design to reduce them under absolute Despotism, it is their Right, it is their Duty, to throw off such Government, and to provide new Guards for their future Security.”
Eventually, in the not too distant future, we’re either going to enforce that anew or accept living upon our knees.
Irreconcilable differences are irreconcilable when ‘compromise’ consists of “heads we win, tails you lose”. When political opposition founded in simple disagreement results in loss of employment, even to imprisonment.
Nice fantasy Art Deco.
It would actually accomplish something, which moving the USDA hq to Cape Girardeau would not.
The Constitution requires only one court, the Supreme Court, and all the others are creatures of statute. So, abolish the DC District Court and Court of Appeal. Maybe leave a magistrate to handle purely local crimes, car jacking, purse snatching, and the like. Major federal crimes can be heard in other federal courts. DC is too corrupt to continue.
Rachelle,
It would be helpful if you shared with us how you propose to get enough of the democrats to vote for all of that…
sdferr, on “the injured defendant’s recourse lays in an impartial appellate court”:
Can appeals, vs. denial of bids for changes of venue, be fast tracked to the Supremes?
Likewise, with appeals vs. judges’ denials of requests to remove a potentially biased juror?
aNanyMouse, to the limited extent I understand the procedure I’d figure no fast track in either case, since there’s no urgency requiring the unusual step to skip a level. Just have to slog it out, one normal step at a time. Costly, too. All the complaints come to the same motion I think, just with different argument for each.
That is, same motion in the lower court: mistrial on grounds x, or y, or z, or combos.
1. Impeach the judges. 2, burn down to ashes the courtrooms. 3. Salt the grounds. 4. Nuke from orbit to make rubblle.
In order to have a climse chance of a Republicc, DC must be utterly destroyed. No mercy.
It would be helpful if you shared with us how you propose to get enough of the democrats to vote for all of that…
Jurisdictional changes can be accomplished with statutory legislation. If you have a majority in each chamber, you can do it if you don’t have slugs like Rob Portman throwing a spanner in the works. Fat chance.
There should be a rule that says ANY case that is politically tinged may NOT be tried in D.C. An alternate state can be chosen at random as the venue.
Yancy’s idea of expanding the jury pool to all of the adjoining states is also a good idea.