Death Row Inmate's DNA Testing Depends on Technicality

Reid says a DNA test on the murder weapon, a belt that was used to strangle Stites, will prove his innocence, but the state of Texas has refused. Now whether he's executed could ha nge on a decision by the Supreme Court on a technical issue whether he filed his appeal to the federal courts too late. Joining he is Bloomberg

Law reporter Jordan Reuben. Jordan tell us a little bit about read Rodney Reid has been on death row since he was convicted and senced to death for the six murder of Stacey Stites, and Reid has maintained his innocence throughout. In the latest issue that's brought his case, to Supreme Court arguments, is his attempt to get DNA testing on crime scene evidence, including the belt that strangled Stites. This

crucial piece of evidence was not tested. The state has reasons that it says it thinks that testing might not show anything, But in any event, the state is resisting testing and that's what has led to rodney Reads lawsuit to try to force the state to do that testing. And it's the latest in the line of cases where there's a person who's claiming innocence and there's some evidence trending in that direction that has gotten the attention of

people beyond just the legal community. Yeah, it's sort of echoes the case against odd Non sayed, that's gotten so much attention. So this is a federal civil rights claim, that's right. So what happened is this in trying to get DNA testing, Rodney Read pursued that claim in the state court, but that claim was denied at the trial court level and then up through the state criminal appeals court.

And so after that denial, Rodney Read then filed a federal civil rights claim challenging the denial on the state level, saying that those state processes violated his due process, and so that's the crux of his federal claim. The problem is that Texas is saying that he waited too long to bring the claim. So the question at the Supreme Court is when the statute of limitation starts to run for a federal claim that state DNA testing procedures violated

due process. Does it start to run when the state trial court denies testing, or does it start to run when the state appeals process has played out? And so it's this very technical sort of question that one might be tempted to get lost in, but it's a crucial question. The answer it depends on whether Rodney Reid and others who are claiming innocence can get DNA testing in these

types of cases. So Red says the clock starts at the end of state court litigation denying crime scene evidence testing, including appeals, while Texas officials say it starts when the

state trial court denies testing. How much of a difference in time is there in his case between those two So we're talking about months or years, depending on which aspect of the dispute, because it's broken up in an even more detailed way than that, because there are different sub arguments to it, But the bottom line is that the difference could mean months or years, depending on how long the appeal takes the play out, because there's also this whole sub issue of if it does end when

the state appeals process ends, does it end when the state High Court denies, or after they deny rehearing on top of that, so there's a whole another side issue even to the issue that's technical on its face in the first instance. But the bottom line is that Read needs his test to be the one that wins for him to be able to get DNA testing. Was there any talk at all during the oral arguments about the fact that he claims he's innocent and the DNA test

could possibly clear him. It's hard to see why you wouldn't give someone a DNA test, right, So, in terms of kind of the reality of the case, that wasn't the subject of the arguments, and that's often the case at the SUREME court. Nonetheless, there was a significant amount of practical discussion, just in terms of the question of why would the state's test make sense as opposed to

Reads test making sense. Reads lawyers certainly didn't mention the innocence aspect during the argument, but there wasn't really this straight up question posed to Texas of why don't you just do the testing. They're really focused more on the technical issue, as is often the a set the court. The Chief Justice didn't seem particularly sympathetic to Read's claim.

So the Chief Justice brought up an interesting issue which Texas brought up to, which is that if Red wins under his proposed test, that that could cause other people bringing claims to suffer, meaning that if the rule is as Read says, which is that you need to wait until your state appeals court process is done, then that would then prevent people who want to bring their claims earlier in the process when Texas is saying they have to bring them by So the logic is basically Red

could win his claim here, but if he's successful, even if he could get DNA testing, then that would in theory hurt people who are trying to get DNA testing earlier in the process. That that's the general point that Roberts brought up and that Texas argued as well. Did you see the courts split in certain ways? Did you see justices on either side. I definitely saw justices on both sides of the issue. For example, Justice Thomas seems

the most likely to vote with the state. His question to both sides was the same, which was what liberty interest was Read even deprived of in the first instance, and who deprived him of it? So really this kind of threshold question which he suggested the answer to it was a negative one for Read, meaning if you can't get past that, then Justice Thomas is unlikely to side with Read. But he was kind of on his own

with that. Most of the justices were more so grappling with the crux of the issue that was presented in the case. But I really didn't get a sense that there was a majority coalescing around any particular answer to this question, at least at the argument. So it's another one of these where we're going to have to wait

and see. I do think that Read has a shot, although you really never know at the court because the way that I look at it, say, we're talking about a death row inmate, and the Court has been very

skeptical of claims coming from death rows. Though even though there was some support Read at the argument, including from Justice Barrett, in some ways he was seemingly agreeing with at least part of his claim, which could be a good sign for him, for one thing, that would only get him potentially to four justices when he would need five. And even then you just don't really know. So I do think Reid needs to get over that six three hurdle. I think that that's possible in the case, but we

just won't know until we have the decision. So explain to me what kind of liberty interest was Thomas looking for. Isn't a liberty interest to have a fair trial right? So to kind of back up with that, and again, the interest is the denial of testing, and that the fact that the state process was unfair from Red's view,

that's the crux of his claim. And that the person who was doing the denial, which is also an important part of Thomas's point, the question of who exactly is depriving him of that interest in this case, read is suing the district attorney who controls the evidence that could be tested. So that's a little bit more of a potentially interesting question just in terms of who is the

one depriving someone of that right. Again, this is really something that Thomas was kind of off on his own with and I think is unlikely to dominate the decision at least based on the argument. So that's really the issue there that Thomas was getting at, to go beyond the oral arguments for a moment. Read is also pointing to an alternative perpetrator, the victim's husband, who was a

police officer at the time. Read has brought evidence forth saying that the police officer knew about an affair that

Read was having with the victim. And this becomes a bit of a he said, He said, although there is evidence from others supporting it now, but really it's a matter of new evidence coming forth and looking at it in a new way, which often happens in the post conviction context, not just potentially absolving Read, but pointing the finger at this alternative perpetrator, Jimmy Sinnel, the former police officer, who I should add was later convicted after being charged

with sexual assault of a woman on duty in a case unrelated to this one. So that's something else that Read is pointing to. So the facts sort of scream out here, but it's a it's a technical issue for the Supreme Court exactly. It's going to come down to this technical issue in a way that I think is fairly understandable compared to some of the cases that the justice are usually taking on, but nonetheless still potentially of

yours and even more significant issue hiding behind it. So you've covered a lot of these cases involving death row inmates, and are the justices, the conservative justices, perhaps concern that inmates are just trying to postpone their executions. That's certainly what they've said in a number of cases, and that issue.

I wouldn't say that that dominated this argument, but it did come up, even if it wasn't really directly relevant, and that in itself shows how much of a concern it is from part of the court and from a state Texas, And so as I see it in any case being brought by a death row prisoner, that's the hurdle that they need to get around, no matter what the question presented is in a case, whether it's statute

of limitations or something else. I think in reality that is what is driving the majority of the court in these cases. And so in this case, someone like read needs not just really to prevail on the legal issue in his case, but to convince the court that he's not just doing something in a sort of untoward or underhanded way in the majority's view. Also on Tuesday, the majority rejected an unrelated Texas death row appeal. Tell us about that, sure, that was the case of Andre Thomas.

That was another death row case from Texas, as you said, And so that was a petition that the Court denied over dissent from the three Democratic appointees Soda my Or, Kagan and the new Justice Jackson filling in there for Justice Bryers. You see that split continue and the issue there was a matter of jury bias that the jurors in this case, it freely came out that they were opposed to interracial relationships. And the defendant in the case

was black and the victim was white. I should say that that's the same dynamic that was at play in the Read case as well. Although the racial issue was not squarely presented in Read. Still, the Supreme Court wound up denying this petition over descent as usual. The Court doesn't give a reason for the denial, but in the three justice descent written by sodomy Or, she said courts have a duty to confront racial animus in the system and lamented that the Court didn't do something with this case.

So Jordan's. Are there other death row inmate cases coming up this term? There isn't any one case that I think is really being watched in that way. But the thing about these death penalty cases is that they're often coming up on the emergency docket, or the shadow docket as it's called. So a lot of times what's prompting a case to come to the Supreme Court is the setting of an execution date. And so there certainly are

execution dates that are set across the country. We're seeing we've seen that kind of schedule fill up, especially as the pandemic has waned in some executions have been postponed, especially on the state level. So that's really what I think is going to be driving this litigation. Anytime that there's an execution set, you can expect litigation coming up to the court on a quick basis, although that's not necessarily something that's forecasted ahead of time, and so people

like myself just have to be ready for that. And I don't know if you can answer this question, but it seems to me just looking generally at the cases as they come up, that usually the death row inmate fails. Oh. Absolutely, there's no question about that. Sometimes the question to my mind is really is there even going to be a

dissent in the case. And so it's certainly I think an uphill battle for any claim coming from death row for reasons that we discussed earlier about the court seeing death throw inmates is simply wanting to delay the inevitable as opposed to raising a meritorious legal claim. Thanks so much, Jordan's that's Bloomberg Laws, Jordan Reuben. It's the first seditious conspiracy trial over the January six capital riot, the most

serious charge to emerge. Prosecutors say five members of the right wing militia group the Oath Keepers, planned an armed rebellion on January six. They allege that founder Stewart Rhodes led the conspiracy that started with calls to reject the election outcome, including an appearance on Info Wars. It's it's either President Trump is concouraged and bolstered strength and the duty must do, or we wind up in a bloody fight.

We all know that the fight's coming. Joining me is former federal prosecutor Jimmy Grula, a professor at Notre Dame Laws. Cool their charge with seditious conspiracy and prosecutions for seditious conspiracy are pretty rare, So tell us about that, Well, they are rare, and you know, historically they have focused on attempts by certain groups, certain individuals attempting to overthrow the government, but the seditious conspiracy statute doesn't require that.

In fact, the theory that the government is pursuing here is that the oath Keepers, including Stuart Rhodes, the leader of the oath Keepers, agreed enter into an agreement a conspiracy to use force to prevent, hinder, or delay the execution of the laws of the United States, specifically involving the peaceful transfer of power. So critical to the government's

case it has to prove this element of agreement. They have to prove that two or more individuals agreed to use force again to prevent delay the peaceful transfer power from then President Trump to President of like Biden. I think that there there is compelling evidence to that effect,

including the words of Stuart Rhodes and other defendants. So they're using their own words against them, specifically kind of encrypted communications during real time, you know, on January six and prior leading up to January six, where they're making some very incriminating statements regarding their efforts their intentions to block this transfer of power from one president to the next. You also have, and this image has been in my

mind since January six. You have the oath keepers moving in stacked military formation, in full on gear and you know, and moving together through that whole crowd. But what about the fact that Stewart Rose and a couple of the others stayed outside. Yeah, what's really interesting aboutspiracy law is that the conspiracy doesn't have to be successful. The plan doesn't even have to be a good plan and effective plan. It's enough if two or more individuals agree to violate

the law. And so even though Stewart Rhodes himself did not breach go into the capital building, that's not necessary. It's not necessary to prove that in order to support a conviction for conspiracy. It's the agreement, it's the understanding, it's the planning that is the heart the center of the conspiracy chart here. So it's no no defense really that well, he didn't, you know, breach the capital, He wasn't part of this stacked group of balth keepers that

entered into the capital. He could still be convicted for conspiracy despite that, so the defense has argued that there was no plan to attack the capital. They went to d C to provide security for some events, and they were preparing for orders from Trump, which never came. It's an interesting defense, and I don't think it's going to

be a successful one. And so apparently the claim is, well, we went to Washington, d C. We transported firearms and ammunition other weapons for the purpose of preventing the peaceful transfer of power, but we were waiting for the president to give us the green light to proceed and we never got the green light from the president for seed. Well,

that's still not going to be a defense. If they had the agreement, they had the intent to delay, again hinder the application of the law, the enforcement of the law, then that's the crime, whether or not they actually were successful in doing it, whether or not they actually received some instruction from the presidents to go forward and executing their plan. The fact that they had a plan, they agree to the plan is the thrust of the conspiracy charge,

not the successful execution of the plan. So I don't think that defense is going to be successful in preventing their conviction. His defense lawyer says, that Stewart Rhodes plans to testify in his own defense. He is a graduate of Yale Law School, but there are so many things that he's going to have to explain away. Yeah, it's

a very dangerous strategy. In most criminal cases, a vast majority of criminal cases, defense lawyers really advise or clients and not take the stand because once they take the stand and they open themselves up to cross examination. And so I'm sure the d o J lawyers are well

prepared to cross examined Stewart Roads. They have a good idea of what he's going to say, what his defense is going to be, and I'm sure they have prior conversations, tape recordings, et cetera of what he said in the past that they're going to use to impeach his claims of oh, I didn't have the intent. You know, it's to prevent the peaceful transfer of power. So it's a very very dangerous strategy and it actually could blow up in Stewart Road's face and actually make it easier to

convict him. So what's the hardest part of this case for the prosecution. Again, it's going to be the intent, you know, did they have actually have the intent. The defendants of claim that, oh, this was just um boastful statements, this was First Amendment protected free speech, but as the

evidence clearly shows that it was more than that. For example, with respect to one of the defendants, one of the oath keepers that that pled guilty to seditious conspiracy, there was evidence that he brought an an, a R fifteen rifle, a nine millimeter pistol, approximately two hundred rounds of ammunition, body armor, a camouflaged combat uniform, pepper spray all to

the Washington, d C. Area. And so to suggest, oh, well, we didn't have the intent to engage in violence to prevent the peaceful transfer of power, that is contradicted by this efvidence, are bringing you know, lethal weapons, two hundred rounds of ammunition, And that wasn't for a peaceful protest, That wasn't for simply exercising one's First Amendment right to challenge and protest against the government. This is evidence of

an intent to engage in violent conduct. What do you think of the defense using Donald Trump and saying we were waiting for him to invoke the Insurrection Act, we were waiting for orders from him that never came well.

Part of it doesn't make sense because the Insurrection Act basically um provides the president with the authority to deploy the US military domestically to suppress an insurrection or rebellion, so again, to deploy U S military forces, or to deploy the state militia, which would be the State National Guard. There's nothing in the Insurrection Act, any of the provisions of the Insurrection Act that would apply to a private militia such as the Oath Keepers. It just doesn't apply

to that situation. And for him to say, for forty Stewart Roach to say, oh, somehow that would have legitimized our action, for the president who invoke the Insurrection Act against this private militia, when the Interaction Act doesn't apply to private militias, It's just it's just not a very compelling persuasive argument. It just doesn't appear that that the Insurrection Act applies to private militia in the first instance. So, Jimmy,

I look at this. They did all this planning, and yet they have shapes, They have so much, so much evidence that they created themselves, tapes and pictures and selfies. I just what were they thinking? Well, I mean that's the you know, the criminals of the fact that the criminals are caught, they're arrested, they're prosecuted. It's not because they're smart. I mean, it's very often it's they they think that they that they smartest person in the room.

They think that they can get away with what they're doing. But but here there's such a strong trail of evidence, admissions by the different defendants, you know, caught on tape, their own words, I mean, they're they're likely to be convicted by their own words and their own conduct. You know, typically in criminal cases it's going to be other witnesses that are going to testify as to what they saw,

and the rye witnesses and so on. Here it looks like the defendants could be convicted based upon their own words, their own admissions, their own conduct, the bringing off weapons, history of weapons in the DC area to be used later, uh to challenge again to to to participate in this act of of insurrection. So I think that they have a very very tough task ahead to try to convince the jury of their innocence despite their own words that that really speak to the contrary. Is there a included

charge if the jury does not find seditious conspiracy. Well, you know, keep in mind that's not the only charge. So seditious conspiracy is is the principal charge. It's the most serious charge, and it carries a penalty of up to twenty years. But they've also been charged with obstruction of an official proceeding and conspiracy to prevent U d CUM officers from discharging their Capital Police from discharging their duties.

So even if somehow that offense were to prevail, would be a reasonable doubt on the suspicious seditious conspiracy charge. There are two other felony charges that they're facing as well, and that the jury could could end up finding them liable for uh, you know, as well. So it could be all three charges or maybe seditious conspiracy or maybe one or both of the other two charges as well. So how high are the stakes for the government to

get the can fiction on seditious conspiracy. The last time there was a conviction on seditious conspiracy was nearly thirty years ago against the Islamic militants who plotted to bomb New York City landmarks. So it's been a while. There's a lot of pressure, There's no question there's a lot

of pressure on the d o J prosecutors. I mean if they fail, if the jury were to come back and quit these individuals, then it's certainly going to give a lot of fuel to the critics of the wide administration, the critics of the o J, the critics of the FBI, that these were all trumped up charges, that this was an overreach by the Department of Justice, and effect it would kind of lend legitimacy, if you will, to the actions taken on January six. So look, they're not criminal.

If they were criminal, then these individuals would have been convicted, and if it's going to give an argument to really kind of minimize the seriousness of the attack on the U. S. Capital. Thanks Jimmy. That's Professor Jimmy Grule of Notre Dame Law School. And that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal news, honor

Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, Slash podcast, Slash Law, and remember to tune into The Bloomberg Law Show every week night at ten bm Wall Street time. I'm June Grosso and you're listening to Bloomberg