GREG DOUCETTE: T. Greg Doucette is an attorney in Durham, North Carolina, who focuses on criminal defense and constitutional law. A political conservative and former Republican, he hosts the podcast “Fsck ‘Em All” [pronounced “fisk”] where he focuses on the week’s stories involving misconduct by police, prosecutors, judges, and politicians.

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Thinkwing Radio with Mike Honig (@ThinkwingRadio), a listener call-in show  airing live every Monday night from 3-4 PM (CT) on KPFT-FM 90.1 (Houston).

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For the purposes of this show, I operate on two mottoes:

• You’re entitled to your own opinion, but not your own facts;
• An educated electorate is a prerequisite for a democracy.

Houston Mayor Annise Parker [L] with Mike, just before the show. (Dec. 7, 2015)

SIGNOFF QUOTE[s]:

“What we’re discovering is that the Constitution is not a mechanism that runs by itself. Ultimately, we are a government of men and not law. The law has no force without people who are willing to enforce it. The ball is now squarely in the court of the Republican Party, and particularly Senate Republicans. Will they ever be prepared to say enough is enough?” ~ William A. Galston, a senior fellow in governance at the Brookings Institution who graduated from college just before Watergate.

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Make sure you are registered to vote! (Show information begins after Item 4, after voting and election information.)

1. HarrisVotes.com (Election Information Line (713) 755-6965) Dr. Diane Trautman, Harris County Clerk
   1. Last Day to Register to Vote was Monday, October 7, 2019
   2. Make sure you are registered to vote!
   3. Next Election: December 14, 2019 – Joint Runoff Election
   4. EARLY VOTING:
      1. November 27^th 7:00 a.m. – 7:00 p.m,
      2. December 2- 7^th 7:00 a.m. – 7:00 p.m.,
      3. December 8^th 1:00 p.m. – 6:00 p.m.,
      4. December 9th – 10^th 7:00 a.m. – 7:00 p.m.
2. Harrisvotes.com (Election Information Line (713) 755-6965) Dr. Diane Trautman, Harris County Clerk
3. VoteTexas.gov
4. T.. Greg Doucette
   1. “Endorses” Elizabeth Warren
      1. Started With Booker (Private Prison),
      2. Liked Warren’s Prison Reform Plan
      3. Saw Warren In Raleigh, NC
   2. Criminal Justice Reform As An Issue, Healthcare, Education
   3. Rodney Reed Execution Postponed On Appeal:
      1. What Is An Appeals Court’s Usual Role?
      2. What Does It Take To Get New Evidence Reviewed?
   4. Stories Of Court Weirdness
5. WHY Greg Likes WARREN?
   1. * Still conservative
   2. * Think GOP needs to be nuked. Then nuke the ashes.
   3. Warren:
   4. (1) She has specific plans with actual contents
   5. (2) I like where she’s at on education; open to where she’s at on healthcare
   6. (3) Also strongly like her criminal justice platform
   7. (4) Saw her in Raleigh during a town hall, and was impressed

RODNEY REED / LAW BASIC DETAILS

==> Important point to remember: the law evolves over time, and ours have evolved from what we inherited from Great Britain in 1776

==> American Constitutional baseline: no federal right to appeal criminal convictions (Abney v. United States, 431 U.S. 651 (1977); McKane v. Durston, 153 U. S. 684 (1894)).  For most of our existence, there were no appeals in criminal cases.

==> If Congress provides a right to appeal, or a state provides a right to appeal (either via statute or its state constitution), the appeals process has to adhere to due process protections in the 5th and 14th Amendments to the United States Constitution

==> Basis for appeal varies by state, but generally appellate courts look at the following:

* lack of jurisdiction over the person (bad paperwork)

* no crime is alleged (bad paperwork)

* prejudicial procedural errors (denial of motions, bad jury instructions, etc)

* constitutional violations that make the conviction invalid (bad search, etc)

* insufficient evidence for judge/jury to find the person guilty beyond a reasonable doubt

* insufficiency of the evidence as it relates to sentencing only

* structured sentencing violations (improperly calculating the defendant’s offender level, or a sentence that goes above the maximum, etc)

==> In reviewing those appeals, appellate courts use the following standards of review:

* “substantial evidence”:  a highly deferential standard. A jury’s verdict must stand if it is supported by substantial evidence, defined as evidence which reasonable minds might accept as adequate to support a conclusion

* “clearly erroneous”: also a highly deferential standard, applied to findings of fact made by a judge and/or jury. The ruling can only be overturned if there’s “a definite and firm conviction that a mistake has been committed.”

=======> If the district court’s account of the evidence is plausible in light of the entire record, the court of appeals may not reverse, even if it would have weighed the evidence differently

=======> “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” (United States v. Elliott, 322 F.3d 710, 715 (9th Cir. 2003))

=======> “Findings of fact are made on the basis of evidentiary hearings and usually involve credibility determinations, which explains why they are reviewed deferentially under the clearly erroneous standard.”

* “abuse of discretion”: generally deferential, applies to most trial-related rulings (objections on excluding evidence, etc).  The appellate court will affirm unless there was “discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.”

=======> The abuse of discretion standard requires an appellate court to uphold a district court determination that falls within a broad range of permissible conclusions

* DE NOVO: non-deferential standard, used to review a judge’s legal conclusions only (e.g. interpretation of federal criminal law); the appeal’s court substitutes its own beliefs for the ones of the trial court

====================

OUTSIDE OF THE NORMAL APPEAL PROCESS, OPTIONS ARE LIMITED

* Typical process is to file a Motion for Appropriate Relief (MAR). Many states have adopted this as a unified motion, to replace motions in arrest of judgment / motions to set aside the verdict / motions for new trial / post-conviction proceedings / coram nobis / other post-trial motions

* Usually have a number of complicated procedural requirements that must be followed precisely or the MAR is denied (e.g. has to be within a specific time frame, issues can’t be raised that should have been raised in a prior appeal, etc etc etc)

* Some reasons for an MAR:

• ==> the statute under which the defendant was convicted or sentenced violated the state or
• federal constitution;
• ==> the conduct for which the defendant was prosecuted was protected by the state or federal constitution;
• ==> there has been a significant change in law, either substantive or procedural, applied in the proceedings leading to the defendant’s conviction or sentence, and retroactive
• application of the changed legal standard is required;
• ==> several others (lack of jurisdiction, lack of a crime, etc mentioned in the Reasons for Appeal section)

BIG REASON FOR MAR: Newly discovered evidence that was not available at the time of the trial, and

• (1) the MAR is filed within a reasonable time after the discovery of the new evidence, and
• (2) the new evidence could have led a reasonable jury to a different outcome

====================

RODNEY REED CASE DETAILS

1. 1. * Convicted in 1996 of abduction / rape / murder of 19yo Stacey Stites in Bastrop TX
   2. * Reed always maintained his innocence, claiming he had a consensual relationship with the victim…
   3. * …but he also had a criminal record of similar acts, that were presented to the jury even though he was not convicted of any of them (uncharged on 5, acquitted on a 6th)
   4. =====> (Even if all the bad things said about Reed are true, even bad people get constitutional rights. The “Miranda” in Miranda v Arizona was a convicted rapist, for example).
   5. * Reed, black, was convicted by an all-white jury
   6. * Murder weapon was never tested for DNA
   7. * State’s witnesses have retracted their affidavits regarding the victim’s time of death
   8. * In 2007, another man confessed to the murder
   9. * There is also unconfirmed allegations that the prosecution withheld exculpatory evidence from the defense during the original trial, which would be a due process violation under Brady v Maryland
   10.  
   11. *** Execution has been stayed for 120 days so the new evidence can be considered

How Norway turns criminals into good neighbours, BBC.COM | 7 July 2019

1. 1. What is the point of sending someone to prison – retribution or rehabilitation? Twenty years ago, Norway moved away from a punitive “lock-up” approach and sharply cut reoffending rates. …
   2. [Are Hoidal governor of Halden Prison ] says “… in the early 1990s, the ethos of the Norwegian Correctional Service underwent a rigorous series of reforms to focus less on what Hoidal terms “revenge” and much more on rehabilitation. Prisoners, who had previously spent most of their day locked up, were offered daily training and educational programmes and the role of the prison guards was completely overhauled. … since our big reforms, recidivism in Norway has fallen to only 20% after two years and about 25% after five years. So this works!”
   3. In the UK, the recidivism rate is almost 50% after just one year.
   4. The architecture of Halden Prison has been designed to minimise residents’ sense of incarceration, to ease psychological stress and to put them in harmony with the surrounding nature …
   5. … “We start planning their release on the first day they arrive,” explains Hoidal, as we walk through to the carpentry workshop where several inmates are making wooden summer houses and benches to furnish a new prison being built in the south of Norway.
   6. “In Norway, all will be released – there are no life sentences,” he reminds me.
   7. Normalising life behind bars (not that there are any bars on the windows at Halden) is the key philosophy that underpins the Norwegian Correctional service. At Halden, this means not only providing daily routines but ensuring family contact is maintained too. Once every three months, inmates with children can apply to a “Daddy In Prison” scheme which, if they pass the necessary safeguarding tests, means they can spend a couple of nights with their partner, sons and daughters in a cosy chalet within the prison grounds. …
   8. … It takes 12 weeks in the UK to train a prison officer. In Norway it takes two to three years. Eight kilometres north-east of Oslo in Lillestrom, an impressive white and glass building houses the University College of the Norwegian Correctional Service, where each year, 175 trainees, selected from over 1,200 applicants, start their studies to become a prison officer.
   9. Hans-Jorgen Brucker walks me around the training prison on campus, which is kitted out with reproduction cells and prison-style furniture. I note a bulging pile of helmets and stab vests in one storage room. Brucker acknowledges that prison officers will undergo security and riot training, but he’s fairly dismissive of this part of the course.
   10. “We want to stop reoffending which means officers need to be well educated,” he says. He shows me a paper outlining the rigorous selection process, which involves written exams in Norwegian and English (about a third of the prison population is non-native, so officers are expected to be fluent in English) and physical fitness tests.
   11. “My students will study law, ethics, criminology, English, reintegration and social work. Then they will have a year training in a prison and then they will come back to take their final exams.” …

Ted Cruz calls efforts to halt Rodney Reed’s execution “remarkable bipartisan coalition” – “If there is credible evidence there’s a real chance a defendant is innocent, that evidence should be weighed carefully,” Cruz tweeted Friday night. by Jolie McCullough and Chase Karacostas | ORG | Nov. 9, 2019 Updated: 3 PM

1. 1. Republican U.S. Sen. Ted Cruz has joined the fast-growing calls from Texas lawmakers and A-list celebrities to take a closer look at the death sentence of Rodney Reed.
   2. Cruz called efforts to halt the execution of Reed “a remarkable bipartisan coalition” on Friday night, the day before hundreds of people rallied outside the Texas Governor’s Mansion in support of Reed.
   3. “Having spent years in law enforcement, I believe capital punishment can be justice for the very worst murderers,” Cruz tweeted. “But if there is credible evidence there’s a real chance a defendant is innocent, that evidence should be weighed carefully.”
   4. Reed is set for execution on Nov. 20 and has been on death row for more than two decades. His guilt has always been shrouded in doubt, but the attention and calls for Republican Gov. Greg Abbott and the Texas Board of Pardons and Paroles to stop his death has skyrocketed in recent months.
   5. This week, a bipartisan group of 26 Texas House lawmakers sent a letter to Abbott and the parole board asking them to stop Reed’s execution so new evidence can be reviewed. Sixteen state senators penned a similar letter Friday, prompting Cruz’s response. …
   6. … The murder of 19-year-old Stacey Stites in Bastrop and the subsequent conviction of Rodney Reed has been in the spotlight for more than two decades. Reed, now 51, has consistently maintained his innocence in the 1996 slaying. His lawyers for years have pointed to new evidence they say makes it impossible for Reed to be the killer and instead, they say, puts suspicion on Stites’ fiancé, Jimmy Fennell. …
   7. … Both men have been accused of multiple sexual assaults. Reed was indicted, but never convicted, in several other rape cases months before his trial in Stites’ death began in 1998. Fennell spent 10 years in prison after he kidnapped and allegedly raped a woman while on duty as a police officer in 2007. …
   8. … Since Reed’s conviction in Stites’ death, a suspected murder weapon has gone untested for DNA, forensic evidence has been reexamined and new witnesses have come forward. …
   9. … Reed has appeals pending in federal court on new witnesses and a repeated request to test DNA on the suspected murder weapon, but most attention is directed at Abbott’s role. The Texas governor can delay an execution for 30 days on his own. With a recommendation from the parole board, he may grant a longer reprieve or re-sentence a death row inmate to life in prison. At Saturday’s rally, King and other speakers said at the very least Reed’s execution must be delayed so there can be more time to look at evidence. But they hope to go much further.
2. Eileen Filler-Corn to Become Virginia’s First Female — and First Jewish — Speaker of the House, By Emily Burack | com |Nov 6, 2019
   1. …Just why does Filler-Corn’s acendancy — alongside the other Democrats’ victories — matter? Well, Virginians can expect a lot of exciting things from Democrats being in power in Virginia. Among them: a $15 minimum wage, gun reform, and — this one’s a biggie — they could become the 38th state to ratify the Equal Rights Amendment, bringing the fight to amend the U.S. Constitution to the Supreme Court. …
   2. The Equal Rights Amendment (ERA) was passed by Congress in 1972. It read, “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” At the time, only 35 states ratified the amendment, falling short of the 38 state minimum to add the amendment. (Also? It was first proposed way back in 1921. We’re only 98 years late…)

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