1 00:00:03,160 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:17,600 --> 00:00:21,400 Speaker 1: Rodney Reid was just days away from being executed when 3 00:00:21,440 --> 00:00:24,760 Speaker 1: he got a stay from Texas's top court. Reid has 4 00:00:24,800 --> 00:00:27,240 Speaker 1: been on death row for decades for the murder of 5 00:00:27,280 --> 00:00:31,479 Speaker 1: Stacy States. He's maintained his innocence through the years, and 6 00:00:31,560 --> 00:00:35,159 Speaker 1: his case has gained national attention, with support from celebrities 7 00:00:35,159 --> 00:00:39,720 Speaker 1: and lawmakers as diverse as Kim Kardashian and Senator Ted Cruz. 8 00:00:40,400 --> 00:00:43,360 Speaker 1: Reid says a DNA test on the murder weapon, a 9 00:00:43,400 --> 00:00:47,000 Speaker 1: belt that was used to strangle Stites, will prove his innocence, 10 00:00:47,159 --> 00:00:50,760 Speaker 1: but the state of Texas has refused. Now whether he's 11 00:00:50,840 --> 00:00:53,840 Speaker 1: executed could ha nge on a decision by the Supreme 12 00:00:53,880 --> 00:00:57,360 Speaker 1: Court on a technical issue whether he filed his appeal 13 00:00:57,400 --> 00:01:00,639 Speaker 1: to the federal courts too late. Joining he is Bloomberg 14 00:01:00,720 --> 00:01:03,680 Speaker 1: Law reporter Jordan Reuben. Jordan tell us a little bit 15 00:01:03,760 --> 00:01:06,720 Speaker 1: about read Rodney Reid has been on death row since 16 00:01:08,080 --> 00:01:11,560 Speaker 1: he was convicted and senced to death for the six 17 00:01:11,720 --> 00:01:16,720 Speaker 1: murder of Stacey Stites, and Reid has maintained his innocence throughout. 18 00:01:16,720 --> 00:01:19,880 Speaker 1: In the latest issue that's brought his case, to Supreme 19 00:01:19,880 --> 00:01:23,520 Speaker 1: Court arguments, is his attempt to get DNA testing on 20 00:01:23,920 --> 00:01:27,400 Speaker 1: crime scene evidence, including the belt that strangled Stites. This 21 00:01:27,640 --> 00:01:30,480 Speaker 1: crucial piece of evidence was not tested. The state has 22 00:01:30,520 --> 00:01:33,240 Speaker 1: reasons that it says it thinks that testing might not 23 00:01:33,280 --> 00:01:36,399 Speaker 1: show anything, But in any event, the state is resisting 24 00:01:36,480 --> 00:01:39,480 Speaker 1: testing and that's what has led to rodney Reads lawsuit 25 00:01:39,560 --> 00:01:41,920 Speaker 1: to try to force the state to do that testing. 26 00:01:42,160 --> 00:01:44,200 Speaker 1: And it's the latest in the line of cases where 27 00:01:44,240 --> 00:01:47,120 Speaker 1: there's a person who's claiming innocence and there's some evidence 28 00:01:47,160 --> 00:01:49,960 Speaker 1: trending in that direction that has gotten the attention of 29 00:01:49,960 --> 00:01:54,040 Speaker 1: people beyond just the legal community. Yeah, it's sort of 30 00:01:54,440 --> 00:01:57,960 Speaker 1: echoes the case against odd Non sayed, that's gotten so 31 00:01:58,040 --> 00:02:01,640 Speaker 1: much attention. So this is a federal civil rights claim, 32 00:02:01,720 --> 00:02:04,320 Speaker 1: that's right. So what happened is this in trying to 33 00:02:04,400 --> 00:02:07,960 Speaker 1: get DNA testing, Rodney Read pursued that claim in the 34 00:02:08,000 --> 00:02:11,120 Speaker 1: state court, but that claim was denied at the trial 35 00:02:11,160 --> 00:02:14,560 Speaker 1: court level and then up through the state criminal appeals court. 36 00:02:14,800 --> 00:02:17,440 Speaker 1: And so after that denial, Rodney Read then filed a 37 00:02:17,520 --> 00:02:22,520 Speaker 1: federal civil rights claim challenging the denial on the state level, 38 00:02:22,560 --> 00:02:26,640 Speaker 1: saying that those state processes violated his due process, and 39 00:02:26,760 --> 00:02:31,080 Speaker 1: so that's the crux of his federal claim. The problem 40 00:02:31,120 --> 00:02:33,520 Speaker 1: is that Texas is saying that he waited too long 41 00:02:33,600 --> 00:02:36,680 Speaker 1: to bring the claim. So the question at the Supreme 42 00:02:36,720 --> 00:02:39,880 Speaker 1: Court is when the statute of limitation starts to run 43 00:02:40,280 --> 00:02:44,079 Speaker 1: for a federal claim that state DNA testing procedures violated 44 00:02:44,120 --> 00:02:46,919 Speaker 1: due process. Does it start to run when the state 45 00:02:46,960 --> 00:02:49,959 Speaker 1: trial court denies testing, or does it start to run 46 00:02:50,040 --> 00:02:52,760 Speaker 1: when the state appeals process has played out? And so 47 00:02:52,800 --> 00:02:56,200 Speaker 1: it's this very technical sort of question that one might 48 00:02:56,240 --> 00:02:59,440 Speaker 1: be tempted to get lost in, but it's a crucial question. 49 00:02:59,480 --> 00:03:02,520 Speaker 1: The answer it depends on whether Rodney Reid and others 50 00:03:02,520 --> 00:03:05,720 Speaker 1: who are claiming innocence can get DNA testing in these 51 00:03:05,720 --> 00:03:09,919 Speaker 1: types of cases. So Red says the clock starts at 52 00:03:09,919 --> 00:03:14,440 Speaker 1: the end of state court litigation denying crime scene evidence testing, 53 00:03:14,560 --> 00:03:17,800 Speaker 1: including appeals, while Texas officials say it starts when the 54 00:03:17,919 --> 00:03:21,120 Speaker 1: state trial court denies testing. How much of a difference 55 00:03:21,120 --> 00:03:24,400 Speaker 1: in time is there in his case between those two 56 00:03:24,800 --> 00:03:28,160 Speaker 1: So we're talking about months or years, depending on which 57 00:03:28,200 --> 00:03:31,520 Speaker 1: aspect of the dispute, because it's broken up in an 58 00:03:31,520 --> 00:03:34,480 Speaker 1: even more detailed way than that, because there are different 59 00:03:34,480 --> 00:03:37,720 Speaker 1: sub arguments to it, But the bottom line is that 60 00:03:37,760 --> 00:03:40,760 Speaker 1: the difference could mean months or years, depending on how 61 00:03:40,800 --> 00:03:43,560 Speaker 1: long the appeal takes the play out, because there's also 62 00:03:43,640 --> 00:03:46,600 Speaker 1: this whole sub issue of if it does end when 63 00:03:46,600 --> 00:03:50,120 Speaker 1: the state appeals process ends, does it end when the 64 00:03:50,160 --> 00:03:53,640 Speaker 1: state High Court denies, or after they deny rehearing on 65 00:03:53,720 --> 00:03:56,960 Speaker 1: top of that, so there's a whole another side issue 66 00:03:57,040 --> 00:04:00,040 Speaker 1: even to the issue that's technical on its face in 67 00:04:00,080 --> 00:04:03,440 Speaker 1: the first instance. But the bottom line is that Read 68 00:04:03,560 --> 00:04:06,000 Speaker 1: needs his test to be the one that wins for 69 00:04:06,080 --> 00:04:09,400 Speaker 1: him to be able to get DNA testing. Was there 70 00:04:09,440 --> 00:04:12,880 Speaker 1: any talk at all during the oral arguments about the 71 00:04:12,920 --> 00:04:17,360 Speaker 1: fact that he claims he's innocent and the DNA test 72 00:04:17,440 --> 00:04:21,120 Speaker 1: could possibly clear him. It's hard to see why you 73 00:04:21,160 --> 00:04:25,200 Speaker 1: wouldn't give someone a DNA test, right, So, in terms 74 00:04:25,400 --> 00:04:29,240 Speaker 1: of kind of the reality of the case, that wasn't 75 00:04:29,320 --> 00:04:32,200 Speaker 1: the subject of the arguments, and that's often the case 76 00:04:32,279 --> 00:04:36,000 Speaker 1: at the SUREME court. Nonetheless, there was a significant amount 77 00:04:36,000 --> 00:04:39,800 Speaker 1: of practical discussion, just in terms of the question of 78 00:04:39,960 --> 00:04:43,760 Speaker 1: why would the state's test make sense as opposed to 79 00:04:44,320 --> 00:04:47,760 Speaker 1: Reads test making sense. Reads lawyers certainly didn't mention the 80 00:04:47,800 --> 00:04:51,440 Speaker 1: innocence aspect during the argument, but there wasn't really this 81 00:04:51,960 --> 00:04:54,680 Speaker 1: straight up question posed to Texas of why don't you 82 00:04:54,720 --> 00:04:57,839 Speaker 1: just do the testing. They're really focused more on the 83 00:04:57,880 --> 00:05:00,800 Speaker 1: technical issue, as is often the a set the court. 84 00:05:01,480 --> 00:05:06,400 Speaker 1: The Chief Justice didn't seem particularly sympathetic to Read's claim. 85 00:05:06,520 --> 00:05:09,440 Speaker 1: So the Chief Justice brought up an interesting issue which 86 00:05:09,520 --> 00:05:13,080 Speaker 1: Texas brought up to, which is that if Red wins 87 00:05:13,200 --> 00:05:16,719 Speaker 1: under his proposed test, that that could cause other people 88 00:05:16,839 --> 00:05:20,600 Speaker 1: bringing claims to suffer, meaning that if the rule is 89 00:05:20,640 --> 00:05:22,919 Speaker 1: as Read says, which is that you need to wait 90 00:05:23,040 --> 00:05:26,800 Speaker 1: until your state appeals court process is done, then that 91 00:05:26,800 --> 00:05:29,600 Speaker 1: would then prevent people who want to bring their claims 92 00:05:29,680 --> 00:05:32,039 Speaker 1: earlier in the process when Texas is saying they have 93 00:05:32,160 --> 00:05:35,679 Speaker 1: to bring them by So the logic is basically Red 94 00:05:35,760 --> 00:05:38,920 Speaker 1: could win his claim here, but if he's successful, even 95 00:05:38,960 --> 00:05:41,599 Speaker 1: if he could get DNA testing, then that would in 96 00:05:41,680 --> 00:05:44,920 Speaker 1: theory hurt people who are trying to get DNA testing 97 00:05:45,000 --> 00:05:47,919 Speaker 1: earlier in the process. That that's the general point that 98 00:05:48,040 --> 00:05:51,520 Speaker 1: Roberts brought up and that Texas argued as well. Did 99 00:05:51,520 --> 00:05:54,240 Speaker 1: you see the courts split in certain ways? Did you 100 00:05:54,279 --> 00:05:58,039 Speaker 1: see justices on either side. I definitely saw justices on 101 00:05:58,160 --> 00:06:01,400 Speaker 1: both sides of the issue. For example, Justice Thomas seems 102 00:06:01,440 --> 00:06:06,080 Speaker 1: the most likely to vote with the state. His question 103 00:06:06,160 --> 00:06:09,320 Speaker 1: to both sides was the same, which was what liberty 104 00:06:09,400 --> 00:06:12,680 Speaker 1: interest was Read even deprived of in the first instance, 105 00:06:12,680 --> 00:06:15,520 Speaker 1: and who deprived him of it? So really this kind 106 00:06:15,520 --> 00:06:19,440 Speaker 1: of threshold question which he suggested the answer to it 107 00:06:19,480 --> 00:06:22,119 Speaker 1: was a negative one for Read, meaning if you can't 108 00:06:22,120 --> 00:06:25,599 Speaker 1: get past that, then Justice Thomas is unlikely to side 109 00:06:25,600 --> 00:06:27,320 Speaker 1: with Read. But he was kind of on his own 110 00:06:27,320 --> 00:06:30,320 Speaker 1: with that. Most of the justices were more so grappling 111 00:06:30,440 --> 00:06:33,919 Speaker 1: with the crux of the issue that was presented in 112 00:06:33,960 --> 00:06:36,359 Speaker 1: the case. But I really didn't get a sense that 113 00:06:36,400 --> 00:06:40,960 Speaker 1: there was a majority coalescing around any particular answer to 114 00:06:41,000 --> 00:06:43,640 Speaker 1: this question, at least at the argument. So it's another 115 00:06:43,640 --> 00:06:45,159 Speaker 1: one of these where we're going to have to wait 116 00:06:45,200 --> 00:06:47,680 Speaker 1: and see. I do think that Read has a shot, 117 00:06:47,800 --> 00:06:52,080 Speaker 1: although you really never know at the court because the 118 00:06:52,120 --> 00:06:54,599 Speaker 1: way that I look at it, say, we're talking about 119 00:06:54,600 --> 00:06:56,920 Speaker 1: a death row inmate, and the Court has been very 120 00:06:57,000 --> 00:07:00,640 Speaker 1: skeptical of claims coming from death rows. Though even though 121 00:07:00,680 --> 00:07:03,440 Speaker 1: there was some support Read at the argument, including from 122 00:07:03,480 --> 00:07:07,280 Speaker 1: Justice Barrett, in some ways he was seemingly agreeing with 123 00:07:07,320 --> 00:07:09,159 Speaker 1: at least part of his claim, which could be a 124 00:07:09,160 --> 00:07:11,720 Speaker 1: good sign for him, for one thing, that would only 125 00:07:11,720 --> 00:07:14,880 Speaker 1: get him potentially to four justices when he would need five. 126 00:07:15,200 --> 00:07:17,080 Speaker 1: And even then you just don't really know. So I 127 00:07:17,080 --> 00:07:20,280 Speaker 1: do think Reid needs to get over that six three hurdle. 128 00:07:20,440 --> 00:07:22,680 Speaker 1: I think that that's possible in the case, but we 129 00:07:22,760 --> 00:07:25,640 Speaker 1: just won't know until we have the decision. So explain 130 00:07:25,680 --> 00:07:30,000 Speaker 1: to me what kind of liberty interest was Thomas looking for. 131 00:07:30,520 --> 00:07:33,920 Speaker 1: Isn't a liberty interest to have a fair trial right? 132 00:07:34,000 --> 00:07:36,400 Speaker 1: So to kind of back up with that, and again, 133 00:07:36,440 --> 00:07:38,880 Speaker 1: the interest is the denial of testing, and that the 134 00:07:38,880 --> 00:07:42,280 Speaker 1: fact that the state process was unfair from Red's view, 135 00:07:42,400 --> 00:07:44,640 Speaker 1: that's the crux of his claim. And that the person 136 00:07:44,960 --> 00:07:47,600 Speaker 1: who was doing the denial, which is also an important 137 00:07:47,680 --> 00:07:50,400 Speaker 1: part of Thomas's point, the question of who exactly is 138 00:07:50,440 --> 00:07:53,160 Speaker 1: depriving him of that interest in this case, read is 139 00:07:53,160 --> 00:07:56,400 Speaker 1: suing the district attorney who controls the evidence that could 140 00:07:56,400 --> 00:07:58,880 Speaker 1: be tested. So that's a little bit more of a 141 00:07:58,960 --> 00:08:01,960 Speaker 1: potentially interesting question just in terms of who is the 142 00:08:01,960 --> 00:08:05,000 Speaker 1: one depriving someone of that right. Again, this is really 143 00:08:05,040 --> 00:08:07,600 Speaker 1: something that Thomas was kind of off on his own 144 00:08:07,640 --> 00:08:11,040 Speaker 1: with and I think is unlikely to dominate the decision 145 00:08:11,040 --> 00:08:15,200 Speaker 1: at least based on the argument. So that's really the 146 00:08:15,280 --> 00:08:18,520 Speaker 1: issue there that Thomas was getting at, to go beyond 147 00:08:18,600 --> 00:08:22,760 Speaker 1: the oral arguments for a moment. Read is also pointing 148 00:08:22,920 --> 00:08:26,920 Speaker 1: to an alternative perpetrator, the victim's husband, who was a 149 00:08:26,960 --> 00:08:30,440 Speaker 1: police officer at the time. Read has brought evidence forth 150 00:08:30,560 --> 00:08:33,560 Speaker 1: saying that the police officer knew about an affair that 151 00:08:33,640 --> 00:08:36,480 Speaker 1: Read was having with the victim. And this becomes a 152 00:08:36,480 --> 00:08:38,800 Speaker 1: bit of a he said, He said, although there is 153 00:08:38,840 --> 00:08:41,880 Speaker 1: evidence from others supporting it now, but really it's a 154 00:08:41,920 --> 00:08:45,120 Speaker 1: matter of new evidence coming forth and looking at it 155 00:08:45,200 --> 00:08:47,800 Speaker 1: in a new way, which often happens in the post 156 00:08:47,800 --> 00:08:52,360 Speaker 1: conviction context, not just potentially absolving Read, but pointing the 157 00:08:52,440 --> 00:08:57,640 Speaker 1: finger at this alternative perpetrator, Jimmy Sinnel, the former police officer, 158 00:08:57,679 --> 00:09:02,640 Speaker 1: who I should add was later convicted after being charged 159 00:09:02,640 --> 00:09:05,199 Speaker 1: with sexual assault of a woman on duty in a 160 00:09:05,320 --> 00:09:08,439 Speaker 1: case unrelated to this one. So that's something else that 161 00:09:08,480 --> 00:09:10,880 Speaker 1: Read is pointing to. So the facts sort of scream 162 00:09:10,920 --> 00:09:13,480 Speaker 1: out here, but it's a it's a technical issue for 163 00:09:13,520 --> 00:09:17,520 Speaker 1: the Supreme Court exactly. It's going to come down to 164 00:09:17,559 --> 00:09:19,400 Speaker 1: this technical issue in a way that I think is 165 00:09:19,760 --> 00:09:22,760 Speaker 1: fairly understandable compared to some of the cases that the 166 00:09:22,840 --> 00:09:26,040 Speaker 1: justice are usually taking on, but nonetheless still potentially of 167 00:09:26,240 --> 00:09:29,760 Speaker 1: yours and even more significant issue hiding behind it. So 168 00:09:29,800 --> 00:09:34,160 Speaker 1: you've covered a lot of these cases involving death row inmates, 169 00:09:34,320 --> 00:09:40,240 Speaker 1: and are the justices, the conservative justices, perhaps concern that 170 00:09:40,320 --> 00:09:45,600 Speaker 1: inmates are just trying to postpone their executions. That's certainly 171 00:09:45,600 --> 00:09:48,280 Speaker 1: what they've said in a number of cases, and that issue. 172 00:09:48,679 --> 00:09:51,280 Speaker 1: I wouldn't say that that dominated this argument, but it 173 00:09:51,360 --> 00:09:54,720 Speaker 1: did come up, even if it wasn't really directly relevant, 174 00:09:54,720 --> 00:09:57,240 Speaker 1: and that in itself shows how much of a concern 175 00:09:57,280 --> 00:09:59,480 Speaker 1: it is from part of the court and from a 176 00:09:59,600 --> 00:10:02,600 Speaker 1: state Texas, And so as I see it in any 177 00:10:02,640 --> 00:10:06,360 Speaker 1: case being brought by a death row prisoner, that's the 178 00:10:06,440 --> 00:10:08,680 Speaker 1: hurdle that they need to get around, no matter what 179 00:10:08,920 --> 00:10:11,440 Speaker 1: the question presented is in a case, whether it's statute 180 00:10:11,440 --> 00:10:14,440 Speaker 1: of limitations or something else. I think in reality that 181 00:10:14,559 --> 00:10:17,200 Speaker 1: is what is driving the majority of the court in 182 00:10:17,240 --> 00:10:20,400 Speaker 1: these cases. And so in this case, someone like read 183 00:10:20,480 --> 00:10:23,199 Speaker 1: needs not just really to prevail on the legal issue 184 00:10:23,200 --> 00:10:25,679 Speaker 1: in his case, but to convince the court that he's 185 00:10:25,720 --> 00:10:28,439 Speaker 1: not just doing something in a sort of untoward or 186 00:10:28,880 --> 00:10:34,400 Speaker 1: underhanded way in the majority's view. Also on Tuesday, the 187 00:10:34,440 --> 00:10:39,440 Speaker 1: majority rejected an unrelated Texas death row appeal. Tell us 188 00:10:39,440 --> 00:10:43,600 Speaker 1: about that, sure, that was the case of Andre Thomas. 189 00:10:43,679 --> 00:10:47,120 Speaker 1: That was another death row case from Texas, as you said, 190 00:10:47,160 --> 00:10:49,160 Speaker 1: And so that was a petition that the Court denied 191 00:10:49,240 --> 00:10:53,240 Speaker 1: over dissent from the three Democratic appointees Soda my Or, 192 00:10:53,400 --> 00:10:56,920 Speaker 1: Kagan and the new Justice Jackson filling in there for 193 00:10:57,000 --> 00:11:00,800 Speaker 1: Justice Bryers. You see that split continue and the issue 194 00:11:00,840 --> 00:11:06,239 Speaker 1: there was a matter of jury bias that the jurors 195 00:11:06,280 --> 00:11:09,559 Speaker 1: in this case, it freely came out that they were 196 00:11:09,559 --> 00:11:13,720 Speaker 1: opposed to interracial relationships. And the defendant in the case 197 00:11:13,880 --> 00:11:16,920 Speaker 1: was black and the victim was white. I should say 198 00:11:16,960 --> 00:11:19,640 Speaker 1: that that's the same dynamic that was at play in 199 00:11:19,640 --> 00:11:22,040 Speaker 1: the Read case as well. Although the racial issue was 200 00:11:22,080 --> 00:11:26,280 Speaker 1: not squarely presented in Read. Still, the Supreme Court wound 201 00:11:26,360 --> 00:11:29,680 Speaker 1: up denying this petition over descent as usual. The Court 202 00:11:29,720 --> 00:11:32,320 Speaker 1: doesn't give a reason for the denial, but in the 203 00:11:32,320 --> 00:11:35,160 Speaker 1: three justice descent written by sodomy Or, she said courts 204 00:11:35,200 --> 00:11:38,720 Speaker 1: have a duty to confront racial animus in the system 205 00:11:38,760 --> 00:11:42,360 Speaker 1: and lamented that the Court didn't do something with this case. 206 00:11:42,880 --> 00:11:47,439 Speaker 1: So Jordan's. Are there other death row inmate cases coming 207 00:11:47,520 --> 00:11:51,800 Speaker 1: up this term? There isn't any one case that I 208 00:11:51,800 --> 00:11:54,199 Speaker 1: think is really being watched in that way. But the 209 00:11:54,240 --> 00:11:57,080 Speaker 1: thing about these death penalty cases is that they're often 210 00:11:57,160 --> 00:12:00,480 Speaker 1: coming up on the emergency docket, or the shadow docket 211 00:12:00,520 --> 00:12:03,560 Speaker 1: as it's called. So a lot of times what's prompting 212 00:12:03,559 --> 00:12:05,560 Speaker 1: a case to come to the Supreme Court is the 213 00:12:05,600 --> 00:12:08,480 Speaker 1: setting of an execution date. And so there certainly are 214 00:12:08,520 --> 00:12:11,120 Speaker 1: execution dates that are set across the country. We're seeing 215 00:12:11,800 --> 00:12:15,000 Speaker 1: we've seen that kind of schedule fill up, especially as 216 00:12:15,040 --> 00:12:19,080 Speaker 1: the pandemic has waned in some executions have been postponed, 217 00:12:19,240 --> 00:12:21,800 Speaker 1: especially on the state level. So that's really what I 218 00:12:21,800 --> 00:12:24,240 Speaker 1: think is going to be driving this litigation. Anytime that 219 00:12:24,240 --> 00:12:27,560 Speaker 1: there's an execution set, you can expect litigation coming up 220 00:12:27,600 --> 00:12:30,320 Speaker 1: to the court on a quick basis, although that's not 221 00:12:30,360 --> 00:12:33,920 Speaker 1: necessarily something that's forecasted ahead of time, and so people 222 00:12:33,920 --> 00:12:36,320 Speaker 1: like myself just have to be ready for that. And 223 00:12:36,520 --> 00:12:38,600 Speaker 1: I don't know if you can answer this question, but 224 00:12:38,760 --> 00:12:41,480 Speaker 1: it seems to me just looking generally at the cases 225 00:12:41,520 --> 00:12:48,720 Speaker 1: as they come up, that usually the death row inmate fails. Oh. Absolutely, 226 00:12:48,800 --> 00:12:52,160 Speaker 1: there's no question about that. Sometimes the question to my 227 00:12:52,240 --> 00:12:54,160 Speaker 1: mind is really is there even going to be a 228 00:12:54,240 --> 00:12:57,959 Speaker 1: dissent in the case. And so it's certainly I think 229 00:12:58,000 --> 00:13:00,960 Speaker 1: an uphill battle for any claim coming from death row 230 00:13:01,040 --> 00:13:04,280 Speaker 1: for reasons that we discussed earlier about the court seeing 231 00:13:04,600 --> 00:13:08,359 Speaker 1: death throw inmates is simply wanting to delay the inevitable 232 00:13:08,360 --> 00:13:12,360 Speaker 1: as opposed to raising a meritorious legal claim. Thanks so much, 233 00:13:12,480 --> 00:13:23,040 Speaker 1: Jordan's that's Bloomberg Laws, Jordan Reuben. It's the first seditious 234 00:13:23,080 --> 00:13:27,400 Speaker 1: conspiracy trial over the January six capital riot, the most 235 00:13:27,440 --> 00:13:31,280 Speaker 1: serious charge to emerge. Prosecutors say five members of the 236 00:13:31,360 --> 00:13:34,720 Speaker 1: right wing militia group the Oath Keepers, planned an armed 237 00:13:34,760 --> 00:13:38,959 Speaker 1: rebellion on January six. They allege that founder Stewart Rhodes 238 00:13:39,160 --> 00:13:42,600 Speaker 1: led the conspiracy that started with calls to reject the 239 00:13:42,640 --> 00:13:47,280 Speaker 1: election outcome, including an appearance on Info Wars. It's it's 240 00:13:47,280 --> 00:13:50,360 Speaker 1: either President Trump is concouraged and bolstered strength and the 241 00:13:50,400 --> 00:13:53,400 Speaker 1: duty must do, or we wind up in a bloody fight. 242 00:13:53,679 --> 00:13:56,000 Speaker 1: We all know that the fight's coming. Joining me is 243 00:13:56,080 --> 00:13:59,880 Speaker 1: former federal prosecutor Jimmy Grula, a professor at Notre Dame Laws. 244 00:14:00,040 --> 00:14:05,640 Speaker 1: Cool their charge with seditious conspiracy and prosecutions for seditious 245 00:14:05,640 --> 00:14:09,840 Speaker 1: conspiracy are pretty rare, So tell us about that, Well, 246 00:14:10,000 --> 00:14:14,119 Speaker 1: they are rare, and you know, historically they have focused 247 00:14:14,160 --> 00:14:19,080 Speaker 1: on attempts by certain groups, certain individuals attempting to overthrow 248 00:14:19,160 --> 00:14:23,240 Speaker 1: the government, but the seditious conspiracy statute doesn't require that. 249 00:14:23,480 --> 00:14:26,480 Speaker 1: In fact, the theory that the government is pursuing here 250 00:14:26,960 --> 00:14:29,960 Speaker 1: is that the oath Keepers, including Stuart Rhodes, the leader 251 00:14:29,960 --> 00:14:32,840 Speaker 1: of the oath Keepers, agreed enter into an agreement a 252 00:14:32,880 --> 00:14:38,000 Speaker 1: conspiracy to use force to prevent, hinder, or delay the 253 00:14:38,080 --> 00:14:42,359 Speaker 1: execution of the laws of the United States, specifically involving 254 00:14:42,360 --> 00:14:47,440 Speaker 1: the peaceful transfer of power. So critical to the government's 255 00:14:47,520 --> 00:14:52,040 Speaker 1: case it has to prove this element of agreement. They 256 00:14:52,040 --> 00:14:55,520 Speaker 1: have to prove that two or more individuals agreed to 257 00:14:56,320 --> 00:15:00,480 Speaker 1: use force again to prevent delay the peaceful transfer power 258 00:15:00,760 --> 00:15:04,560 Speaker 1: from then President Trump to President of like Biden. I 259 00:15:04,600 --> 00:15:07,960 Speaker 1: think that there there is compelling evidence to that effect, 260 00:15:08,400 --> 00:15:13,080 Speaker 1: including the words of Stuart Rhodes and other defendants. So 261 00:15:13,160 --> 00:15:16,640 Speaker 1: they're using their own words against them, specifically kind of 262 00:15:16,880 --> 00:15:21,760 Speaker 1: encrypted communications during real time, you know, on January six 263 00:15:21,960 --> 00:15:24,640 Speaker 1: and prior leading up to January six, where they're making 264 00:15:24,680 --> 00:15:28,880 Speaker 1: some very incriminating statements regarding their efforts their intentions to 265 00:15:29,000 --> 00:15:31,920 Speaker 1: block this transfer of power from one president to the next. 266 00:15:32,640 --> 00:15:35,400 Speaker 1: You also have, and this image has been in my 267 00:15:35,440 --> 00:15:40,720 Speaker 1: mind since January six. You have the oath keepers moving 268 00:15:40,760 --> 00:15:47,440 Speaker 1: in stacked military formation, in full on gear and you know, 269 00:15:47,600 --> 00:15:52,480 Speaker 1: and moving together through that whole crowd. But what about 270 00:15:52,520 --> 00:15:55,080 Speaker 1: the fact that Stewart Rose and a couple of the 271 00:15:55,120 --> 00:16:01,480 Speaker 1: others stayed outside. Yeah, what's really interesting aboutspiracy law is 272 00:16:01,520 --> 00:16:04,840 Speaker 1: that the conspiracy doesn't have to be successful. The plan 273 00:16:04,960 --> 00:16:07,960 Speaker 1: doesn't even have to be a good plan and effective plan. 274 00:16:08,560 --> 00:16:12,200 Speaker 1: It's enough if two or more individuals agree to violate 275 00:16:12,240 --> 00:16:17,120 Speaker 1: the law. And so even though Stewart Rhodes himself did 276 00:16:17,120 --> 00:16:21,880 Speaker 1: not breach go into the capital building, that's not necessary. 277 00:16:21,880 --> 00:16:24,680 Speaker 1: It's not necessary to prove that in order to support 278 00:16:24,680 --> 00:16:28,480 Speaker 1: a conviction for conspiracy. It's the agreement, it's the understanding, 279 00:16:28,520 --> 00:16:32,000 Speaker 1: it's the planning that is the heart the center of 280 00:16:32,080 --> 00:16:35,720 Speaker 1: the conspiracy chart here. So it's no no defense really 281 00:16:35,800 --> 00:16:38,400 Speaker 1: that well, he didn't, you know, breach the capital, He 282 00:16:38,520 --> 00:16:41,640 Speaker 1: wasn't part of this stacked group of balth keepers that 283 00:16:41,880 --> 00:16:44,480 Speaker 1: entered into the capital. He could still be convicted for 284 00:16:44,560 --> 00:16:48,280 Speaker 1: conspiracy despite that, so the defense has argued that there 285 00:16:48,360 --> 00:16:51,040 Speaker 1: was no plan to attack the capital. They went to 286 00:16:51,160 --> 00:16:54,600 Speaker 1: d C to provide security for some events, and they 287 00:16:54,600 --> 00:16:58,760 Speaker 1: were preparing for orders from Trump, which never came. It's 288 00:16:58,800 --> 00:17:01,960 Speaker 1: an interesting defense, and I don't think it's going to 289 00:17:02,000 --> 00:17:05,520 Speaker 1: be a successful one. And so apparently the claim is, well, 290 00:17:05,600 --> 00:17:10,560 Speaker 1: we went to Washington, d C. We transported firearms and 291 00:17:10,760 --> 00:17:16,320 Speaker 1: ammunition other weapons for the purpose of preventing the peaceful 292 00:17:16,359 --> 00:17:19,840 Speaker 1: transfer of power, but we were waiting for the president 293 00:17:19,920 --> 00:17:23,439 Speaker 1: to give us the green light to proceed and we 294 00:17:23,520 --> 00:17:25,760 Speaker 1: never got the green light from the president for seed. Well, 295 00:17:25,840 --> 00:17:27,800 Speaker 1: that's still not going to be a defense. If they 296 00:17:27,800 --> 00:17:31,679 Speaker 1: had the agreement, they had the intent to delay, again 297 00:17:31,800 --> 00:17:35,000 Speaker 1: hinder the application of the law, the enforcement of the law, 298 00:17:35,560 --> 00:17:39,080 Speaker 1: then that's the crime, whether or not they actually were 299 00:17:39,119 --> 00:17:42,280 Speaker 1: successful in doing it, whether or not they actually received 300 00:17:42,320 --> 00:17:46,480 Speaker 1: some instruction from the presidents to go forward and executing 301 00:17:46,520 --> 00:17:49,280 Speaker 1: their plan. The fact that they had a plan, they 302 00:17:49,320 --> 00:17:52,920 Speaker 1: agree to the plan is the thrust of the conspiracy charge, 303 00:17:53,000 --> 00:17:56,840 Speaker 1: not the successful execution of the plan. So I don't 304 00:17:56,840 --> 00:18:00,080 Speaker 1: think that defense is going to be successful in preventing 305 00:18:00,200 --> 00:18:04,520 Speaker 1: their conviction. His defense lawyer says, that Stewart Rhodes plans 306 00:18:04,560 --> 00:18:08,160 Speaker 1: to testify in his own defense. He is a graduate 307 00:18:08,200 --> 00:18:11,040 Speaker 1: of Yale Law School, but there are so many things 308 00:18:11,119 --> 00:18:13,879 Speaker 1: that he's going to have to explain away. Yeah, it's 309 00:18:13,880 --> 00:18:17,359 Speaker 1: a very dangerous strategy. In most criminal cases, a vast 310 00:18:17,400 --> 00:18:21,760 Speaker 1: majority of criminal cases, defense lawyers really advise or clients 311 00:18:21,760 --> 00:18:23,960 Speaker 1: and not take the stand because once they take the 312 00:18:24,000 --> 00:18:27,000 Speaker 1: stand and they open themselves up to cross examination. And 313 00:18:27,080 --> 00:18:29,080 Speaker 1: so I'm sure the d o J lawyers are well 314 00:18:29,119 --> 00:18:32,200 Speaker 1: prepared to cross examined Stewart Roads. They have a good 315 00:18:32,200 --> 00:18:33,879 Speaker 1: idea of what he's going to say, what his defense 316 00:18:34,000 --> 00:18:37,520 Speaker 1: is going to be, and I'm sure they have prior conversations, 317 00:18:37,600 --> 00:18:39,679 Speaker 1: tape recordings, et cetera of what he said in the 318 00:18:39,720 --> 00:18:43,760 Speaker 1: past that they're going to use to impeach his claims 319 00:18:43,920 --> 00:18:46,240 Speaker 1: of oh, I didn't have the intent. You know, it's 320 00:18:46,280 --> 00:18:48,720 Speaker 1: to prevent the peaceful transfer of power. So it's a 321 00:18:48,840 --> 00:18:52,160 Speaker 1: very very dangerous strategy and it actually could blow up 322 00:18:52,240 --> 00:18:55,080 Speaker 1: in Stewart Road's face and actually make it easier to 323 00:18:55,119 --> 00:18:58,320 Speaker 1: convict him. So what's the hardest part of this case 324 00:18:58,400 --> 00:19:01,760 Speaker 1: for the prosecution. Again, it's going to be the intent, 325 00:19:02,640 --> 00:19:05,960 Speaker 1: you know, did they have actually have the intent. The 326 00:19:06,119 --> 00:19:11,720 Speaker 1: defendants of claim that, oh, this was just um boastful statements, 327 00:19:12,160 --> 00:19:16,679 Speaker 1: this was First Amendment protected free speech, but as the 328 00:19:16,680 --> 00:19:20,240 Speaker 1: evidence clearly shows that it was more than that. For example, 329 00:19:20,280 --> 00:19:22,879 Speaker 1: with respect to one of the defendants, one of the 330 00:19:22,920 --> 00:19:27,480 Speaker 1: oath keepers that that pled guilty to seditious conspiracy, there 331 00:19:27,560 --> 00:19:30,600 Speaker 1: was evidence that he brought an an, a R fifteen rifle, 332 00:19:31,080 --> 00:19:35,080 Speaker 1: a nine millimeter pistol, approximately two hundred rounds of ammunition, 333 00:19:35,240 --> 00:19:41,320 Speaker 1: body armor, a camouflaged combat uniform, pepper spray all to 334 00:19:41,960 --> 00:19:45,840 Speaker 1: the Washington, d C. Area. And so to suggest, oh, well, 335 00:19:45,920 --> 00:19:49,600 Speaker 1: we didn't have the intent to engage in violence to 336 00:19:49,640 --> 00:19:54,960 Speaker 1: prevent the peaceful transfer of power, that is contradicted by 337 00:19:55,080 --> 00:19:58,800 Speaker 1: this efvidence, are bringing you know, lethal weapons, two hundred 338 00:19:58,920 --> 00:20:02,120 Speaker 1: rounds of ammunition, And that wasn't for a peaceful protest, 339 00:20:02,200 --> 00:20:06,680 Speaker 1: That wasn't for simply exercising one's First Amendment right to 340 00:20:06,880 --> 00:20:10,399 Speaker 1: challenge and protest against the government. This is evidence of 341 00:20:10,440 --> 00:20:13,760 Speaker 1: an intent to engage in violent conduct. What do you 342 00:20:13,760 --> 00:20:17,440 Speaker 1: think of the defense using Donald Trump and saying we 343 00:20:17,440 --> 00:20:21,680 Speaker 1: were waiting for him to invoke the Insurrection Act, we 344 00:20:21,680 --> 00:20:24,960 Speaker 1: were waiting for orders from him that never came well. 345 00:20:25,000 --> 00:20:27,600 Speaker 1: Part of it doesn't make sense because the Insurrection Act 346 00:20:27,720 --> 00:20:33,679 Speaker 1: basically um provides the president with the authority to deploy 347 00:20:33,760 --> 00:20:39,400 Speaker 1: the US military domestically to suppress an insurrection or rebellion, 348 00:20:39,960 --> 00:20:44,000 Speaker 1: so again, to deploy U S military forces, or to 349 00:20:44,640 --> 00:20:48,919 Speaker 1: deploy the state militia, which would be the State National Guard. 350 00:20:49,320 --> 00:20:52,240 Speaker 1: There's nothing in the Insurrection Act, any of the provisions 351 00:20:52,240 --> 00:20:55,200 Speaker 1: of the Insurrection Act that would apply to a private 352 00:20:55,280 --> 00:20:58,760 Speaker 1: militia such as the Oath Keepers. It just doesn't apply 353 00:20:58,840 --> 00:21:01,960 Speaker 1: to that situation. And for him to say, for forty 354 00:21:02,040 --> 00:21:05,720 Speaker 1: Stewart Roach to say, oh, somehow that would have legitimized 355 00:21:06,480 --> 00:21:11,040 Speaker 1: our action, for the president who invoke the Insurrection Act 356 00:21:11,600 --> 00:21:15,919 Speaker 1: against this private militia, when the Interaction Act doesn't apply 357 00:21:16,040 --> 00:21:19,120 Speaker 1: to private militias, It's just it's just not a very 358 00:21:19,119 --> 00:21:22,679 Speaker 1: compelling persuasive argument. It just doesn't appear that that the 359 00:21:22,720 --> 00:21:27,280 Speaker 1: Insurrection Act applies to private militia in the first instance. So, Jimmy, 360 00:21:27,320 --> 00:21:30,520 Speaker 1: I look at this. They did all this planning, and 361 00:21:30,720 --> 00:21:34,440 Speaker 1: yet they have shapes, They have so much, so much 362 00:21:34,480 --> 00:21:40,360 Speaker 1: evidence that they created themselves, tapes and pictures and selfies. 363 00:21:41,320 --> 00:21:45,400 Speaker 1: I just what were they thinking? Well, I mean that's 364 00:21:45,480 --> 00:21:47,760 Speaker 1: the you know, the criminals of the fact that the 365 00:21:47,880 --> 00:21:53,240 Speaker 1: criminals are caught, they're arrested, they're prosecuted. It's not because 366 00:21:53,280 --> 00:21:57,879 Speaker 1: they're smart. I mean, it's very often it's they they 367 00:21:58,040 --> 00:22:01,080 Speaker 1: think that they that they smartest person in the room. 368 00:22:01,119 --> 00:22:03,639 Speaker 1: They think that they can get away with what they're doing. 369 00:22:03,800 --> 00:22:08,080 Speaker 1: But but here there's such a strong trail of evidence, 370 00:22:08,200 --> 00:22:12,200 Speaker 1: admissions by the different defendants, you know, caught on tape, 371 00:22:12,240 --> 00:22:14,520 Speaker 1: their own words, I mean, they're they're likely to be 372 00:22:14,960 --> 00:22:18,479 Speaker 1: convicted by their own words and their own conduct. You know, 373 00:22:18,600 --> 00:22:22,000 Speaker 1: typically in criminal cases it's going to be other witnesses 374 00:22:22,040 --> 00:22:24,680 Speaker 1: that are going to testify as to what they saw, 375 00:22:24,960 --> 00:22:27,560 Speaker 1: and the rye witnesses and so on. Here it looks 376 00:22:27,640 --> 00:22:31,520 Speaker 1: like the defendants could be convicted based upon their own words, 377 00:22:31,600 --> 00:22:35,880 Speaker 1: their own admissions, their own conduct, the bringing off weapons, 378 00:22:36,000 --> 00:22:40,240 Speaker 1: history of weapons in the DC area to be used later, 379 00:22:41,080 --> 00:22:44,800 Speaker 1: uh to challenge again to to to participate in this 380 00:22:45,119 --> 00:22:47,919 Speaker 1: act of of insurrection. So I think that they have 381 00:22:47,960 --> 00:22:52,800 Speaker 1: a very very tough task ahead to try to convince 382 00:22:52,840 --> 00:22:57,000 Speaker 1: the jury of their innocence despite their own words that 383 00:22:57,000 --> 00:23:01,040 Speaker 1: that really speak to the contrary. Is there a included 384 00:23:01,160 --> 00:23:05,800 Speaker 1: charge if the jury does not find seditious conspiracy. Well, 385 00:23:06,160 --> 00:23:08,280 Speaker 1: you know, keep in mind that's not the only charge. 386 00:23:08,280 --> 00:23:11,679 Speaker 1: So seditious conspiracy is is the principal charge. It's the 387 00:23:11,720 --> 00:23:14,320 Speaker 1: most serious charge, and it carries a penalty of up 388 00:23:14,359 --> 00:23:18,639 Speaker 1: to twenty years. But they've also been charged with obstruction 389 00:23:18,680 --> 00:23:24,000 Speaker 1: of an official proceeding and conspiracy to prevent U d 390 00:23:24,160 --> 00:23:30,080 Speaker 1: CUM officers from discharging their Capital Police from discharging their duties. 391 00:23:30,480 --> 00:23:34,040 Speaker 1: So even if somehow that offense were to prevail, would 392 00:23:34,040 --> 00:23:37,520 Speaker 1: be a reasonable doubt on the suspicious seditious conspiracy charge. 393 00:23:37,840 --> 00:23:41,920 Speaker 1: There are two other felony charges that they're facing as well, 394 00:23:42,440 --> 00:23:45,440 Speaker 1: and that the jury could could end up finding them 395 00:23:45,480 --> 00:23:48,800 Speaker 1: liable for uh, you know, as well. So it could 396 00:23:48,800 --> 00:23:52,680 Speaker 1: be all three charges or maybe seditious conspiracy or maybe 397 00:23:52,960 --> 00:23:55,240 Speaker 1: one or both of the other two charges as well. 398 00:23:55,920 --> 00:23:58,240 Speaker 1: So how high are the stakes for the government to 399 00:23:58,400 --> 00:24:02,879 Speaker 1: get the can fiction on seditious conspiracy. The last time 400 00:24:03,560 --> 00:24:07,119 Speaker 1: there was a conviction on seditious conspiracy was nearly thirty 401 00:24:07,200 --> 00:24:11,080 Speaker 1: years ago against the Islamic militants who plotted to bomb 402 00:24:11,119 --> 00:24:14,120 Speaker 1: New York City landmarks. So it's been a while. There's 403 00:24:14,160 --> 00:24:16,040 Speaker 1: a lot of pressure, There's no question there's a lot 404 00:24:16,040 --> 00:24:18,679 Speaker 1: of pressure on the d o J prosecutors. I mean 405 00:24:18,760 --> 00:24:20,920 Speaker 1: if they fail, if the jury were to come back 406 00:24:21,119 --> 00:24:24,200 Speaker 1: and quit these individuals, then it's certainly going to give 407 00:24:24,320 --> 00:24:27,680 Speaker 1: a lot of fuel to the critics of the wide administration, 408 00:24:27,720 --> 00:24:30,480 Speaker 1: the critics of the o J, the critics of the FBI, 409 00:24:31,000 --> 00:24:33,159 Speaker 1: that these were all trumped up charges, that this was 410 00:24:33,200 --> 00:24:35,800 Speaker 1: an overreach by the Department of Justice, and effect it 411 00:24:35,800 --> 00:24:38,760 Speaker 1: would kind of lend legitimacy, if you will, to the 412 00:24:38,800 --> 00:24:42,200 Speaker 1: actions taken on January six. So look, they're not criminal. 413 00:24:42,520 --> 00:24:45,520 Speaker 1: If they were criminal, then these individuals would have been convicted, 414 00:24:45,520 --> 00:24:47,640 Speaker 1: and if it's going to give an argument to really 415 00:24:47,680 --> 00:24:51,520 Speaker 1: kind of minimize the seriousness of the attack on the U. S. Capital. 416 00:24:51,640 --> 00:24:55,199 Speaker 1: Thanks Jimmy. That's Professor Jimmy Grule of Notre Dame Law School. 417 00:24:55,520 --> 00:24:57,800 Speaker 1: And that's it for this edition of The Bloomberg Law Show. 418 00:24:58,160 --> 00:25:00,640 Speaker 1: Remember you can always get the latest legal news, honor 419 00:25:00,680 --> 00:25:05,000 Speaker 1: Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, 420 00:25:05,040 --> 00:25:10,040 Speaker 1: and at www dot Bloomberg dot com, Slash podcast, Slash Law, 421 00:25:10,480 --> 00:25:13,080 Speaker 1: and remember to tune into The Bloomberg Law Show every 422 00:25:13,119 --> 00:25:16,600 Speaker 1: week night at ten bm Wall Street time. I'm June 423 00:25:16,600 --> 00:25:18,760 Speaker 1: Grosso and you're listening to Bloomberg