WEBVTT - Death Row Inmate's DNA Testing Depends on Technicality 0:00:03.160 --> 0:00:07.960 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:17.600 --> 0:00:21.400 Rodney Reid was just days away from being executed when 0:00:21.440 --> 0:00:24.760 he got a stay from Texas's top court. Reid has 0:00:24.800 --> 0:00:27.240 been on death row for decades for the murder of 0:00:27.280 --> 0:00:31.479 Stacy States. He's maintained his innocence through the years, and 0:00:31.560 --> 0:00:35.159 his case has gained national attention, with support from celebrities 0:00:35.159 --> 0:00:39.720 and lawmakers as diverse as Kim Kardashian and Senator Ted Cruz. 0:00:40.400 --> 0:00:43.360 Reid says a DNA test on the murder weapon, a 0:00:43.400 --> 0:00:47.000 belt that was used to strangle Stites, will prove his innocence, 0:00:47.159 --> 0:00:50.760 but the state of Texas has refused. Now whether he's 0:00:50.840 --> 0:00:53.840 executed could ha nge on a decision by the Supreme 0:00:53.880 --> 0:00:57.360 Court on a technical issue whether he filed his appeal 0:00:57.400 --> 0:01:00.639 to the federal courts too late. Joining he is Bloomberg 0:01:00.720 --> 0:01:03.680 Law reporter Jordan Reuben. Jordan tell us a little bit 0:01:03.760 --> 0:01:06.720 about read Rodney Reid has been on death row since 0:01:08.080 --> 0:01:11.560 he was convicted and senced to death for the six 0:01:11.720 --> 0:01:16.720 murder of Stacey Stites, and Reid has maintained his innocence throughout. 0:01:16.720 --> 0:01:19.880 In the latest issue that's brought his case, to Supreme 0:01:19.880 --> 0:01:23.520 Court arguments, is his attempt to get DNA testing on 0:01:23.920 --> 0:01:27.400 crime scene evidence, including the belt that strangled Stites. This 0:01:27.640 --> 0:01:30.480 crucial piece of evidence was not tested. The state has 0:01:30.520 --> 0:01:33.240 reasons that it says it thinks that testing might not 0:01:33.280 --> 0:01:36.399 show anything, But in any event, the state is resisting 0:01:36.480 --> 0:01:39.480 testing and that's what has led to rodney Reads lawsuit 0:01:39.560 --> 0:01:41.920 to try to force the state to do that testing. 0:01:42.160 --> 0:01:44.200 And it's the latest in the line of cases where 0:01:44.240 --> 0:01:47.120 there's a person who's claiming innocence and there's some evidence 0:01:47.160 --> 0:01:49.960 trending in that direction that has gotten the attention of 0:01:49.960 --> 0:01:54.040 people beyond just the legal community. Yeah, it's sort of 0:01:54.440 --> 0:01:57.960 echoes the case against odd Non sayed, that's gotten so 0:01:58.040 --> 0:02:01.640 much attention. So this is a federal civil rights claim, 0:02:01.720 --> 0:02:04.320 that's right. So what happened is this in trying to 0:02:04.400 --> 0:02:07.960 get DNA testing, Rodney Read pursued that claim in the 0:02:08.000 --> 0:02:11.120 state court, but that claim was denied at the trial 0:02:11.160 --> 0:02:14.560 court level and then up through the state criminal appeals court. 0:02:14.800 --> 0:02:17.440 And so after that denial, Rodney Read then filed a 0:02:17.520 --> 0:02:22.520 federal civil rights claim challenging the denial on the state level, 0:02:22.560 --> 0:02:26.640 saying that those state processes violated his due process, and 0:02:26.760 --> 0:02:31.080 so that's the crux of his federal claim. The problem 0:02:31.120 --> 0:02:33.520 is that Texas is saying that he waited too long 0:02:33.600 --> 0:02:36.680 to bring the claim. So the question at the Supreme 0:02:36.720 --> 0:02:39.880 Court is when the statute of limitation starts to run 0:02:40.280 --> 0:02:44.079 for a federal claim that state DNA testing procedures violated 0:02:44.120 --> 0:02:46.919 due process. Does it start to run when the state 0:02:46.960 --> 0:02:49.959 trial court denies testing, or does it start to run 0:02:50.040 --> 0:02:52.760 when the state appeals process has played out? And so 0:02:52.800 --> 0:02:56.200 it's this very technical sort of question that one might 0:02:56.240 --> 0:02:59.440 be tempted to get lost in, but it's a crucial question. 0:02:59.480 --> 0:03:02.520 The answer it depends on whether Rodney Reid and others 0:03:02.520 --> 0:03:05.720 who are claiming innocence can get DNA testing in these 0:03:05.720 --> 0:03:09.919 types of cases. So Red says the clock starts at 0:03:09.919 --> 0:03:14.440 the end of state court litigation denying crime scene evidence testing, 0:03:14.560 --> 0:03:17.800 including appeals, while Texas officials say it starts when the 0:03:17.919 --> 0:03:21.120 state trial court denies testing. How much of a difference 0:03:21.120 --> 0:03:24.400 in time is there in his case between those two 0:03:24.800 --> 0:03:28.160 So we're talking about months or years, depending on which 0:03:28.200 --> 0:03:31.520 aspect of the dispute, because it's broken up in an 0:03:31.520 --> 0:03:34.480 even more detailed way than that, because there are different 0:03:34.480 --> 0:03:37.720 sub arguments to it, But the bottom line is that 0:03:37.760 --> 0:03:40.760 the difference could mean months or years, depending on how 0:03:40.800 --> 0:03:43.560 long the appeal takes the play out, because there's also 0:03:43.640 --> 0:03:46.600 this whole sub issue of if it does end when 0:03:46.600 --> 0:03:50.120 the state appeals process ends, does it end when the 0:03:50.160 --> 0:03:53.640 state High Court denies, or after they deny rehearing on 0:03:53.720 --> 0:03:56.960 top of that, so there's a whole another side issue 0:03:57.040 --> 0:04:00.040 even to the issue that's technical on its face in 0:04:00.080 --> 0:04:03.440 the first instance. But the bottom line is that Read 0:04:03.560 --> 0:04:06.000 needs his test to be the one that wins for 0:04:06.080 --> 0:04:09.400 him to be able to get DNA testing. Was there 0:04:09.440 --> 0:04:12.880 any talk at all during the oral arguments about the 0:04:12.920 --> 0:04:17.360 fact that he claims he's innocent and the DNA test 0:04:17.440 --> 0:04:21.120 could possibly clear him. It's hard to see why you 0:04:21.160 --> 0:04:25.200 wouldn't give someone a DNA test, right, So, in terms 0:04:25.400 --> 0:04:29.240 of kind of the reality of the case, that wasn't 0:04:29.320 --> 0:04:32.200 the subject of the arguments, and that's often the case 0:04:32.279 --> 0:04:36.000 at the SUREME court. Nonetheless, there was a significant amount 0:04:36.000 --> 0:04:39.800 of practical discussion, just in terms of the question of 0:04:39.960 --> 0:04:43.760 why would the state's test make sense as opposed to 0:04:44.320 --> 0:04:47.760 Reads test making sense. Reads lawyers certainly didn't mention the 0:04:47.800 --> 0:04:51.440 innocence aspect during the argument, but there wasn't really this 0:04:51.960 --> 0:04:54.680 straight up question posed to Texas of why don't you 0:04:54.720 --> 0:04:57.839 just do the testing. They're really focused more on the 0:04:57.880 --> 0:05:00.800 technical issue, as is often the a set the court. 0:05:01.480 --> 0:05:06.400 The Chief Justice didn't seem particularly sympathetic to Read's claim. 0:05:06.520 --> 0:05:09.440 So the Chief Justice brought up an interesting issue which 0:05:09.520 --> 0:05:13.080 Texas brought up to, which is that if Red wins 0:05:13.200 --> 0:05:16.719 under his proposed test, that that could cause other people 0:05:16.839 --> 0:05:20.600 bringing claims to suffer, meaning that if the rule is 0:05:20.640 --> 0:05:22.919 as Read says, which is that you need to wait 0:05:23.040 --> 0:05:26.800 until your state appeals court process is done, then that 0:05:26.800 --> 0:05:29.600 would then prevent people who want to bring their claims 0:05:29.680 --> 0:05:32.039 earlier in the process when Texas is saying they have 0:05:32.160 --> 0:05:35.679 to bring them by So the logic is basically Red 0:05:35.760 --> 0:05:38.920 could win his claim here, but if he's successful, even 0:05:38.960 --> 0:05:41.599 if he could get DNA testing, then that would in 0:05:41.680 --> 0:05:44.920 theory hurt people who are trying to get DNA testing 0:05:45.000 --> 0:05:47.919 earlier in the process. That that's the general point that 0:05:48.040 --> 0:05:51.520 Roberts brought up and that Texas argued as well. Did 0:05:51.520 --> 0:05:54.240 you see the courts split in certain ways? Did you 0:05:54.279 --> 0:05:58.039 see justices on either side. I definitely saw justices on 0:05:58.160 --> 0:06:01.400 both sides of the issue. For example, Justice Thomas seems 0:06:01.440 --> 0:06:06.080 the most likely to vote with the state. His question 0:06:06.160 --> 0:06:09.320 to both sides was the same, which was what liberty 0:06:09.400 --> 0:06:12.680 interest was Read even deprived of in the first instance, 0:06:12.680 --> 0:06:15.520 and who deprived him of it? So really this kind 0:06:15.520 --> 0:06:19.440 of threshold question which he suggested the answer to it 0:06:19.480 --> 0:06:22.119 was a negative one for Read, meaning if you can't 0:06:22.120 --> 0:06:25.599 get past that, then Justice Thomas is unlikely to side 0:06:25.600 --> 0:06:27.320 with Read. But he was kind of on his own 0:06:27.320 --> 0:06:30.320 with that. Most of the justices were more so grappling 0:06:30.440 --> 0:06:33.919 with the crux of the issue that was presented in 0:06:33.960 --> 0:06:36.359 the case. But I really didn't get a sense that 0:06:36.400 --> 0:06:40.960 there was a majority coalescing around any particular answer to 0:06:41.000 --> 0:06:43.640 this question, at least at the argument. So it's another 0:06:43.640 --> 0:06:45.159 one of these where we're going to have to wait 0:06:45.200 --> 0:06:47.680 and see. I do think that Read has a shot, 0:06:47.800 --> 0:06:52.080 although you really never know at the court because the 0:06:52.120 --> 0:06:54.599 way that I look at it, say, we're talking about 0:06:54.600 --> 0:06:56.920 a death row inmate, and the Court has been very 0:06:57.000 --> 0:07:00.640 skeptical of claims coming from death rows. Though even though 0:07:00.680 --> 0:07:03.440 there was some support Read at the argument, including from 0:07:03.480 --> 0:07:07.280 Justice Barrett, in some ways he was seemingly agreeing with 0:07:07.320 --> 0:07:09.159 at least part of his claim, which could be a 0:07:09.160 --> 0:07:11.720 good sign for him, for one thing, that would only 0:07:11.720 --> 0:07:14.880 get him potentially to four justices when he would need five. 0:07:15.200 --> 0:07:17.080 And even then you just don't really know. So I 0:07:17.080 --> 0:07:20.280 do think Reid needs to get over that six three hurdle. 0:07:20.440 --> 0:07:22.680 I think that that's possible in the case, but we 0:07:22.760 --> 0:07:25.640 just won't know until we have the decision. So explain 0:07:25.680 --> 0:07:30.000 to me what kind of liberty interest was Thomas looking for. 0:07:30.520 --> 0:07:33.920 Isn't a liberty interest to have a fair trial right? 0:07:34.000 --> 0:07:36.400 So to kind of back up with that, and again, 0:07:36.440 --> 0:07:38.880 the interest is the denial of testing, and that the 0:07:38.880 --> 0:07:42.280 fact that the state process was unfair from Red's view, 0:07:42.400 --> 0:07:44.640 that's the crux of his claim. And that the person 0:07:44.960 --> 0:07:47.600 who was doing the denial, which is also an important 0:07:47.680 --> 0:07:50.400 part of Thomas's point, the question of who exactly is 0:07:50.440 --> 0:07:53.160 depriving him of that interest in this case, read is 0:07:53.160 --> 0:07:56.400 suing the district attorney who controls the evidence that could 0:07:56.400 --> 0:07:58.880 be tested. So that's a little bit more of a 0:07:58.960 --> 0:08:01.960 potentially interesting question just in terms of who is the 0:08:01.960 --> 0:08:05.000 one depriving someone of that right. Again, this is really 0:08:05.040 --> 0:08:07.600 something that Thomas was kind of off on his own 0:08:07.640 --> 0:08:11.040 with and I think is unlikely to dominate the decision 0:08:11.040 --> 0:08:15.200 at least based on the argument. So that's really the 0:08:15.280 --> 0:08:18.520 issue there that Thomas was getting at, to go beyond 0:08:18.600 --> 0:08:22.760 the oral arguments for a moment. Read is also pointing 0:08:22.920 --> 0:08:26.920 to an alternative perpetrator, the victim's husband, who was a 0:08:26.960 --> 0:08:30.440 police officer at the time. Read has brought evidence forth 0:08:30.560 --> 0:08:33.560 saying that the police officer knew about an affair that 0:08:33.640 --> 0:08:36.480 Read was having with the victim. And this becomes a 0:08:36.480 --> 0:08:38.800 bit of a he said, He said, although there is 0:08:38.840 --> 0:08:41.880 evidence from others supporting it now, but really it's a 0:08:41.920 --> 0:08:45.120 matter of new evidence coming forth and looking at it 0:08:45.200 --> 0:08:47.800 in a new way, which often happens in the post 0:08:47.800 --> 0:08:52.360 conviction context, not just potentially absolving Read, but pointing the 0:08:52.440 --> 0:08:57.640 finger at this alternative perpetrator, Jimmy Sinnel, the former police officer, 0:08:57.679 --> 0:09:02.640 who I should add was later convicted after being charged 0:09:02.640 --> 0:09:05.199 with sexual assault of a woman on duty in a 0:09:05.320 --> 0:09:08.439 case unrelated to this one. So that's something else that 0:09:08.480 --> 0:09:10.880 Read is pointing to. So the facts sort of scream 0:09:10.920 --> 0:09:13.480 out here, but it's a it's a technical issue for 0:09:13.520 --> 0:09:17.520 the Supreme Court exactly. It's going to come down to 0:09:17.559 --> 0:09:19.400 this technical issue in a way that I think is 0:09:19.760 --> 0:09:22.760 fairly understandable compared to some of the cases that the 0:09:22.840 --> 0:09:26.040 justice are usually taking on, but nonetheless still potentially of 0:09:26.240 --> 0:09:29.760 yours and even more significant issue hiding behind it. So 0:09:29.800 --> 0:09:34.160 you've covered a lot of these cases involving death row inmates, 0:09:34.320 --> 0:09:40.240 and are the justices, the conservative justices, perhaps concern that 0:09:40.320 --> 0:09:45.600 inmates are just trying to postpone their executions. That's certainly 0:09:45.600 --> 0:09:48.280 what they've said in a number of cases, and that issue. 0:09:48.679 --> 0:09:51.280 I wouldn't say that that dominated this argument, but it 0:09:51.360 --> 0:09:54.720 did come up, even if it wasn't really directly relevant, 0:09:54.720 --> 0:09:57.240 and that in itself shows how much of a concern 0:09:57.280 --> 0:09:59.480 it is from part of the court and from a 0:09:59.600 --> 0:10:02.600 state Texas, And so as I see it in any 0:10:02.640 --> 0:10:06.360 case being brought by a death row prisoner, that's the 0:10:06.440 --> 0:10:08.680 hurdle that they need to get around, no matter what 0:10:08.920 --> 0:10:11.440 the question presented is in a case, whether it's statute 0:10:11.440 --> 0:10:14.440 of limitations or something else. I think in reality that 0:10:14.559 --> 0:10:17.200 is what is driving the majority of the court in 0:10:17.240 --> 0:10:20.400 these cases. And so in this case, someone like read 0:10:20.480 --> 0:10:23.199 needs not just really to prevail on the legal issue 0:10:23.200 --> 0:10:25.679 in his case, but to convince the court that he's 0:10:25.720 --> 0:10:28.439 not just doing something in a sort of untoward or 0:10:28.880 --> 0:10:34.400 underhanded way in the majority's view. Also on Tuesday, the 0:10:34.440 --> 0:10:39.440 majority rejected an unrelated Texas death row appeal. Tell us 0:10:39.440 --> 0:10:43.600 about that, sure, that was the case of Andre Thomas. 0:10:43.679 --> 0:10:47.120 That was another death row case from Texas, as you said, 0:10:47.160 --> 0:10:49.160 And so that was a petition that the Court denied 0:10:49.240 --> 0:10:53.240 over dissent from the three Democratic appointees Soda my Or, 0:10:53.400 --> 0:10:56.920 Kagan and the new Justice Jackson filling in there for 0:10:57.000 --> 0:11:00.800 Justice Bryers. You see that split continue and the issue 0:11:00.840 --> 0:11:06.239 there was a matter of jury bias that the jurors 0:11:06.280 --> 0:11:09.559 in this case, it freely came out that they were 0:11:09.559 --> 0:11:13.720 opposed to interracial relationships. And the defendant in the case 0:11:13.880 --> 0:11:16.920 was black and the victim was white. I should say 0:11:16.960 --> 0:11:19.640 that that's the same dynamic that was at play in 0:11:19.640 --> 0:11:22.040 the Read case as well. Although the racial issue was 0:11:22.080 --> 0:11:26.280 not squarely presented in Read. Still, the Supreme Court wound 0:11:26.360 --> 0:11:29.680 up denying this petition over descent as usual. The Court 0:11:29.720 --> 0:11:32.320 doesn't give a reason for the denial, but in the 0:11:32.320 --> 0:11:35.160 three justice descent written by sodomy Or, she said courts 0:11:35.200 --> 0:11:38.720 have a duty to confront racial animus in the system 0:11:38.760 --> 0:11:42.360 and lamented that the Court didn't do something with this case. 0:11:42.880 --> 0:11:47.439 So Jordan's. Are there other death row inmate cases coming 0:11:47.520 --> 0:11:51.800 up this term? There isn't any one case that I 0:11:51.800 --> 0:11:54.199 think is really being watched in that way. But the 0:11:54.240 --> 0:11:57.080 thing about these death penalty cases is that they're often 0:11:57.160 --> 0:12:00.480 coming up on the emergency docket, or the shadow docket 0:12:00.520 --> 0:12:03.560 as it's called. So a lot of times what's prompting 0:12:03.559 --> 0:12:05.560 a case to come to the Supreme Court is the 0:12:05.600 --> 0:12:08.480 setting of an execution date. And so there certainly are 0:12:08.520 --> 0:12:11.120 execution dates that are set across the country. We're seeing 0:12:11.800 --> 0:12:15.000 we've seen that kind of schedule fill up, especially as 0:12:15.040 --> 0:12:19.080 the pandemic has waned in some executions have been postponed, 0:12:19.240 --> 0:12:21.800 especially on the state level. So that's really what I 0:12:21.800 --> 0:12:24.240 think is going to be driving this litigation. Anytime that 0:12:24.240 --> 0:12:27.560 there's an execution set, you can expect litigation coming up 0:12:27.600 --> 0:12:30.320 to the court on a quick basis, although that's not 0:12:30.360 --> 0:12:33.920 necessarily something that's forecasted ahead of time, and so people 0:12:33.920 --> 0:12:36.320 like myself just have to be ready for that. And 0:12:36.520 --> 0:12:38.600 I don't know if you can answer this question, but 0:12:38.760 --> 0:12:41.480 it seems to me just looking generally at the cases 0:12:41.520 --> 0:12:48.720 as they come up, that usually the death row inmate fails. Oh. Absolutely, 0:12:48.800 --> 0:12:52.160 there's no question about that. Sometimes the question to my 0:12:52.240 --> 0:12:54.160 mind is really is there even going to be a 0:12:54.240 --> 0:12:57.959 dissent in the case. And so it's certainly I think 0:12:58.000 --> 0:13:00.960 an uphill battle for any claim coming from death row 0:13:01.040 --> 0:13:04.280 for reasons that we discussed earlier about the court seeing 0:13:04.600 --> 0:13:08.359 death throw inmates is simply wanting to delay the inevitable 0:13:08.360 --> 0:13:12.360 as opposed to raising a meritorious legal claim. Thanks so much, 0:13:12.480 --> 0:13:23.040 Jordan's that's Bloomberg Laws, Jordan Reuben. It's the first seditious 0:13:23.080 --> 0:13:27.400 conspiracy trial over the January six capital riot, the most 0:13:27.440 --> 0:13:31.280 serious charge to emerge. Prosecutors say five members of the 0:13:31.360 --> 0:13:34.720 right wing militia group the Oath Keepers, planned an armed 0:13:34.760 --> 0:13:38.959 rebellion on January six. They allege that founder Stewart Rhodes 0:13:39.160 --> 0:13:42.600 led the conspiracy that started with calls to reject the 0:13:42.640 --> 0:13:47.280 election outcome, including an appearance on Info Wars. It's it's 0:13:47.280 --> 0:13:50.360 either President Trump is concouraged and bolstered strength and the 0:13:50.400 --> 0:13:53.400 duty must do, or we wind up in a bloody fight. 0:13:53.679 --> 0:13:56.000 We all know that the fight's coming. Joining me is 0:13:56.080 --> 0:13:59.880 former federal prosecutor Jimmy Grula, a professor at Notre Dame Laws. 0:14:00.040 --> 0:14:05.640 Cool their charge with seditious conspiracy and prosecutions for seditious 0:14:05.640 --> 0:14:09.840 conspiracy are pretty rare, So tell us about that, Well, 0:14:10.000 --> 0:14:14.119 they are rare, and you know, historically they have focused 0:14:14.160 --> 0:14:19.080 on attempts by certain groups, certain individuals attempting to overthrow 0:14:19.160 --> 0:14:23.240 the government, but the seditious conspiracy statute doesn't require that. 0:14:23.480 --> 0:14:26.480 In fact, the theory that the government is pursuing here 0:14:26.960 --> 0:14:29.960 is that the oath Keepers, including Stuart Rhodes, the leader 0:14:29.960 --> 0:14:32.840 of the oath Keepers, agreed enter into an agreement a 0:14:32.880 --> 0:14:38.000 conspiracy to use force to prevent, hinder, or delay the 0:14:38.080 --> 0:14:42.359 execution of the laws of the United States, specifically involving 0:14:42.360 --> 0:14:47.440 the peaceful transfer of power. So critical to the government's 0:14:47.520 --> 0:14:52.040 case it has to prove this element of agreement. They 0:14:52.040 --> 0:14:55.520 have to prove that two or more individuals agreed to 0:14:56.320 --> 0:15:00.480 use force again to prevent delay the peaceful transfer power 0:15:00.760 --> 0:15:04.560 from then President Trump to President of like Biden. I 0:15:04.600 --> 0:15:07.960 think that there there is compelling evidence to that effect, 0:15:08.400 --> 0:15:13.080 including the words of Stuart Rhodes and other defendants. So 0:15:13.160 --> 0:15:16.640 they're using their own words against them, specifically kind of 0:15:16.880 --> 0:15:21.760 encrypted communications during real time, you know, on January six 0:15:21.960 --> 0:15:24.640 and prior leading up to January six, where they're making 0:15:24.680 --> 0:15:28.880 some very incriminating statements regarding their efforts their intentions to 0:15:29.000 --> 0:15:31.920 block this transfer of power from one president to the next. 0:15:32.640 --> 0:15:35.400 You also have, and this image has been in my 0:15:35.440 --> 0:15:40.720 mind since January six. You have the oath keepers moving 0:15:40.760 --> 0:15:47.440 in stacked military formation, in full on gear and you know, 0:15:47.600 --> 0:15:52.480 and moving together through that whole crowd. But what about 0:15:52.520 --> 0:15:55.080 the fact that Stewart Rose and a couple of the 0:15:55.120 --> 0:16:01.480 others stayed outside. Yeah, what's really interesting aboutspiracy law is 0:16:01.520 --> 0:16:04.840 that the conspiracy doesn't have to be successful. The plan 0:16:04.960 --> 0:16:07.960 doesn't even have to be a good plan and effective plan. 0:16:08.560 --> 0:16:12.200 It's enough if two or more individuals agree to violate 0:16:12.240 --> 0:16:17.120 the law. And so even though Stewart Rhodes himself did 0:16:17.120 --> 0:16:21.880 not breach go into the capital building, that's not necessary. 0:16:21.880 --> 0:16:24.680 It's not necessary to prove that in order to support 0:16:24.680 --> 0:16:28.480 a conviction for conspiracy. It's the agreement, it's the understanding, 0:16:28.520 --> 0:16:32.000 it's the planning that is the heart the center of 0:16:32.080 --> 0:16:35.720 the conspiracy chart here. So it's no no defense really 0:16:35.800 --> 0:16:38.400 that well, he didn't, you know, breach the capital, He 0:16:38.520 --> 0:16:41.640 wasn't part of this stacked group of balth keepers that 0:16:41.880 --> 0:16:44.480 entered into the capital. He could still be convicted for 0:16:44.560 --> 0:16:48.280 conspiracy despite that, so the defense has argued that there 0:16:48.360 --> 0:16:51.040 was no plan to attack the capital. They went to 0:16:51.160 --> 0:16:54.600 d C to provide security for some events, and they 0:16:54.600 --> 0:16:58.760 were preparing for orders from Trump, which never came. It's 0:16:58.800 --> 0:17:01.960 an interesting defense, and I don't think it's going to 0:17:02.000 --> 0:17:05.520 be a successful one. And so apparently the claim is, well, 0:17:05.600 --> 0:17:10.560 we went to Washington, d C. We transported firearms and 0:17:10.760 --> 0:17:16.320 ammunition other weapons for the purpose of preventing the peaceful 0:17:16.359 --> 0:17:19.840 transfer of power, but we were waiting for the president 0:17:19.920 --> 0:17:23.439 to give us the green light to proceed and we 0:17:23.520 --> 0:17:25.760 never got the green light from the president for seed. Well, 0:17:25.840 --> 0:17:27.800 that's still not going to be a defense. If they 0:17:27.800 --> 0:17:31.679 had the agreement, they had the intent to delay, again 0:17:31.800 --> 0:17:35.000 hinder the application of the law, the enforcement of the law, 0:17:35.560 --> 0:17:39.080 then that's the crime, whether or not they actually were 0:17:39.119 --> 0:17:42.280 successful in doing it, whether or not they actually received 0:17:42.320 --> 0:17:46.480 some instruction from the presidents to go forward and executing 0:17:46.520 --> 0:17:49.280 their plan. The fact that they had a plan, they 0:17:49.320 --> 0:17:52.920 agree to the plan is the thrust of the conspiracy charge, 0:17:53.000 --> 0:17:56.840 not the successful execution of the plan. So I don't 0:17:56.840 --> 0:18:00.080 think that defense is going to be successful in preventing 0:18:00.200 --> 0:18:04.520 their conviction. His defense lawyer says, that Stewart Rhodes plans 0:18:04.560 --> 0:18:08.160 to testify in his own defense. He is a graduate 0:18:08.200 --> 0:18:11.040 of Yale Law School, but there are so many things 0:18:11.119 --> 0:18:13.879 that he's going to have to explain away. Yeah, it's 0:18:13.880 --> 0:18:17.359 a very dangerous strategy. In most criminal cases, a vast 0:18:17.400 --> 0:18:21.760 majority of criminal cases, defense lawyers really advise or clients 0:18:21.760 --> 0:18:23.960 and not take the stand because once they take the 0:18:24.000 --> 0:18:27.000 stand and they open themselves up to cross examination. And 0:18:27.080 --> 0:18:29.080 so I'm sure the d o J lawyers are well 0:18:29.119 --> 0:18:32.200 prepared to cross examined Stewart Roads. They have a good 0:18:32.200 --> 0:18:33.879 idea of what he's going to say, what his defense 0:18:34.000 --> 0:18:37.520 is going to be, and I'm sure they have prior conversations, 0:18:37.600 --> 0:18:39.679 tape recordings, et cetera of what he said in the 0:18:39.720 --> 0:18:43.760 past that they're going to use to impeach his claims 0:18:43.920 --> 0:18:46.240 of oh, I didn't have the intent. You know, it's 0:18:46.280 --> 0:18:48.720 to prevent the peaceful transfer of power. So it's a 0:18:48.840 --> 0:18:52.160 very very dangerous strategy and it actually could blow up 0:18:52.240 --> 0:18:55.080 in Stewart Road's face and actually make it easier to 0:18:55.119 --> 0:18:58.320 convict him. So what's the hardest part of this case 0:18:58.400 --> 0:19:01.760 for the prosecution. Again, it's going to be the intent, 0:19:02.640 --> 0:19:05.960 you know, did they have actually have the intent. The 0:19:06.119 --> 0:19:11.720 defendants of claim that, oh, this was just um boastful statements, 0:19:12.160 --> 0:19:16.679 this was First Amendment protected free speech, but as the 0:19:16.680 --> 0:19:20.240 evidence clearly shows that it was more than that. For example, 0:19:20.280 --> 0:19:22.879 with respect to one of the defendants, one of the 0:19:22.920 --> 0:19:27.480 oath keepers that that pled guilty to seditious conspiracy, there 0:19:27.560 --> 0:19:30.600 was evidence that he brought an an, a R fifteen rifle, 0:19:31.080 --> 0:19:35.080 a nine millimeter pistol, approximately two hundred rounds of ammunition, 0:19:35.240 --> 0:19:41.320 body armor, a camouflaged combat uniform, pepper spray all to 0:19:41.960 --> 0:19:45.840 the Washington, d C. Area. And so to suggest, oh, well, 0:19:45.920 --> 0:19:49.600 we didn't have the intent to engage in violence to 0:19:49.640 --> 0:19:54.960 prevent the peaceful transfer of power, that is contradicted by 0:19:55.080 --> 0:19:58.800 this efvidence, are bringing you know, lethal weapons, two hundred 0:19:58.920 --> 0:20:02.120 rounds of ammunition, And that wasn't for a peaceful protest, 0:20:02.200 --> 0:20:06.680 That wasn't for simply exercising one's First Amendment right to 0:20:06.880 --> 0:20:10.399 challenge and protest against the government. This is evidence of 0:20:10.440 --> 0:20:13.760 an intent to engage in violent conduct. What do you 0:20:13.760 --> 0:20:17.440 think of the defense using Donald Trump and saying we 0:20:17.440 --> 0:20:21.680 were waiting for him to invoke the Insurrection Act, we 0:20:21.680 --> 0:20:24.960 were waiting for orders from him that never came well. 0:20:25.000 --> 0:20:27.600 Part of it doesn't make sense because the Insurrection Act 0:20:27.720 --> 0:20:33.679 basically um provides the president with the authority to deploy 0:20:33.760 --> 0:20:39.400 the US military domestically to suppress an insurrection or rebellion, 0:20:39.960 --> 0:20:44.000 so again, to deploy U S military forces, or to 0:20:44.640 --> 0:20:48.919 deploy the state militia, which would be the State National Guard. 0:20:49.320 --> 0:20:52.240 There's nothing in the Insurrection Act, any of the provisions 0:20:52.240 --> 0:20:55.200 of the Insurrection Act that would apply to a private 0:20:55.280 --> 0:20:58.760 militia such as the Oath Keepers. It just doesn't apply 0:20:58.840 --> 0:21:01.960 to that situation. And for him to say, for forty 0:21:02.040 --> 0:21:05.720 Stewart Roach to say, oh, somehow that would have legitimized 0:21:06.480 --> 0:21:11.040 our action, for the president who invoke the Insurrection Act 0:21:11.600 --> 0:21:15.919 against this private militia, when the Interaction Act doesn't apply 0:21:16.040 --> 0:21:19.120 to private militias, It's just it's just not a very 0:21:19.119 --> 0:21:22.679 compelling persuasive argument. It just doesn't appear that that the 0:21:22.720 --> 0:21:27.280 Insurrection Act applies to private militia in the first instance. So, Jimmy, 0:21:27.320 --> 0:21:30.520 I look at this. They did all this planning, and 0:21:30.720 --> 0:21:34.440 yet they have shapes, They have so much, so much 0:21:34.480 --> 0:21:40.360 evidence that they created themselves, tapes and pictures and selfies. 0:21:41.320 --> 0:21:45.400 I just what were they thinking? Well, I mean that's 0:21:45.480 --> 0:21:47.760 the you know, the criminals of the fact that the 0:21:47.880 --> 0:21:53.240 criminals are caught, they're arrested, they're prosecuted. It's not because 0:21:53.280 --> 0:21:57.879 they're smart. I mean, it's very often it's they they 0:21:58.040 --> 0:22:01.080 think that they that they smartest person in the room. 0:22:01.119 --> 0:22:03.639 They think that they can get away with what they're doing. 0:22:03.800 --> 0:22:08.080 But but here there's such a strong trail of evidence, 0:22:08.200 --> 0:22:12.200 admissions by the different defendants, you know, caught on tape, 0:22:12.240 --> 0:22:14.520 their own words, I mean, they're they're likely to be 0:22:14.960 --> 0:22:18.479 convicted by their own words and their own conduct. You know, 0:22:18.600 --> 0:22:22.000 typically in criminal cases it's going to be other witnesses 0:22:22.040 --> 0:22:24.680 that are going to testify as to what they saw, 0:22:24.960 --> 0:22:27.560 and the rye witnesses and so on. Here it looks 0:22:27.640 --> 0:22:31.520 like the defendants could be convicted based upon their own words, 0:22:31.600 --> 0:22:35.880 their own admissions, their own conduct, the bringing off weapons, 0:22:36.000 --> 0:22:40.240 history of weapons in the DC area to be used later, 0:22:41.080 --> 0:22:44.800 uh to challenge again to to to participate in this 0:22:45.119 --> 0:22:47.919 act of of insurrection. So I think that they have 0:22:47.960 --> 0:22:52.800 a very very tough task ahead to try to convince 0:22:52.840 --> 0:22:57.000 the jury of their innocence despite their own words that 0:22:57.000 --> 0:23:01.040 that really speak to the contrary. Is there a included 0:23:01.160 --> 0:23:05.800 charge if the jury does not find seditious conspiracy. Well, 0:23:06.160 --> 0:23:08.280 you know, keep in mind that's not the only charge. 0:23:08.280 --> 0:23:11.679 So seditious conspiracy is is the principal charge. It's the 0:23:11.720 --> 0:23:14.320 most serious charge, and it carries a penalty of up 0:23:14.359 --> 0:23:18.639 to twenty years. But they've also been charged with obstruction 0:23:18.680 --> 0:23:24.000 of an official proceeding and conspiracy to prevent U d 0:23:24.160 --> 0:23:30.080 CUM officers from discharging their Capital Police from discharging their duties. 0:23:30.480 --> 0:23:34.040 So even if somehow that offense were to prevail, would 0:23:34.040 --> 0:23:37.520 be a reasonable doubt on the suspicious seditious conspiracy charge. 0:23:37.840 --> 0:23:41.920 There are two other felony charges that they're facing as well, 0:23:42.440 --> 0:23:45.440 and that the jury could could end up finding them 0:23:45.480 --> 0:23:48.800 liable for uh, you know, as well. So it could 0:23:48.800 --> 0:23:52.680 be all three charges or maybe seditious conspiracy or maybe 0:23:52.960 --> 0:23:55.240 one or both of the other two charges as well. 0:23:55.920 --> 0:23:58.240 So how high are the stakes for the government to 0:23:58.400 --> 0:24:02.879 get the can fiction on seditious conspiracy. The last time 0:24:03.560 --> 0:24:07.119 there was a conviction on seditious conspiracy was nearly thirty 0:24:07.200 --> 0:24:11.080