Texas Invents New Barriers to DNA Testing While Blaming Rodney Reed for Delay Tactics

Amid mounting evidence of Reed’s innocence, Texas dickered over deadlines in a convoluted argument before the Supreme Court.

A demonstrator holding a placard speaks to protest against the death penalty in the Rodney Reed v. Bryan Goertz case in front of the Supreme Court Building. (Photo by Jordan Tovin / SOPA Images/Sipa USA)(Sipa via AP Images)
Demonstrators hold signs protesting Rodney Reed’s death sentence in front of the U.S. Supreme Court in Washington, D.C., on Oct. 11, 2022. Photo: Jordan Tovin/Sipa USA via AP

Rodney Reed’s family stood outside the U.S. Supreme Court, waiting to be escorted up the marble steps. It was a crisp Tuesday morning in mid-October; Reed’s 73-year-old mother was there with her 6-year-old grandson, R.J., who wore a tie decorated with rainbow-colored dinosaurs. A group of anti-death penalty activists stood nearby holding a large black banner that read “RODNEY REED IS INNOCENT.” A reporter gently asked R.J. if he knew what was going to be discussed inside. “Uncle Rodney!” he replied.

R.J. was only 6 weeks old when he first visited Texas death row with his father, Rodrick Reed Sr. By then, his uncle had been there for almost 20 years — and had come close to execution once. In 2019, as R.J.’s third birthday approached and Reed faced another execution date, their hometown newspaper in Bastrop, Texas, printed a front-page photo of R.J. standing in front of the Supreme Court, where his family called on the justices to intervene. Their pleas were rejected. But Reed’s execution was called off at the last minute anyway.

Now, the justices had finally decided to consider Reed’s case. The family made the trip once more to Washington, D.C., to attend the oral argument. The outcome will determine whether Reed can seek DNA testing of key crime scene evidence through the federal courts.

“My family’s been fighting this my whole life,” said Reed’s niece, Brittany. Growing up in Bastrop with the last name Reed wasn’t always easy. But things had started to change, she said. The last execution date brought a wave of protests in support of her uncle, fueled in part by celebrity advocates like Kim Kardashian. More recently, a nine-day evidentiary hearing revealed compelling new evidence pointing to Reed’s innocence — including witnesses who tried to speak to the police years earlier but were ignored. “A lot of people are able to see the real truth,” Brittany said.

Reed, who is Black, was sent to death row in 1998 for killing a 19-year-old white woman named Stacey Stites. Her body was found on the side of a country road outside Bastrop, and sperm recovered from Stites’s body was matched to Reed. Prosecutors called this evidence the “Cinderella’s slipper” revealing her killer. But Reed insisted he was innocent. He said he’d been having a secret affair with Stites, who was engaged to a white police officer. That officer, Jimmy Fennell, denied the possibility of an affair, claiming that he and Stites had a loving relationship and she didn’t know anyone named Rodney Reed. Fennell was never seriously considered as a suspect, yet there was evidence from the start that he might have been responsible for Stites’s death.


Texas and the Racist Machinery of Death

This evidence had only gotten stronger over time. Friends of Stites’s confirmed that she and Reed knew each other, and law enforcement colleagues of Fennell’s said he had discovered the affair and was furious that Stites was involved with a Black man. Fennell was later sentenced to 10 years in prison for kidnapping and sexually assaulting a woman while on duty. He threatened to kill her if she told anyone about it. Yet Texas courts have repeatedly blocked Reed’s efforts to win a new trial.

Although Reed’s family was cautiously hopeful the Supreme Court justices would rule in his favor, they learned long ago not to stay silent while leaving his fate to the courts. No matter what happened that morning, Rodrick said before ascending the courthouse steps, he and his family would keep fighting. “There’s a lot of things still yet to come.”

Texas death row prisoner Rodney Reed's nephew Roderick Reed Jr., 6, stands with faith leaders and supporters for a prayer rally organized by Death Penalty Action, in front of the U.S. Supreme Court prior to attending arguments in Rodney Reed v. Bryan Goertz case Tuesday, Oct. 11, 2022, in Washington. (AP Photo/Alex Brandon)

Rodney Reed’s nephew R.J., 6, stands with faith leaders and supporters at a prayer rally organized by Death Penalty Action in front of the Supreme Court on Oct. 11, 2022, in Washington, D.C.

Photo: Alex Brandon/AP

Years of Legal Wrangling

The road to the Supreme Court was long and arduous. By the time the justices agreed to review a narrow legal question, Reed had sought the high court’s intervention numerous times. In a pointed dissent from the court’s refusal to consider his case in 2020, Justice Sonia Sotomayor highlighted the grave questions that had been raised over Reed’s guilt over more than two decades — and the repeated refusal of Texas courts to confront them. “Reed has presented a substantial body of evidence that, if true, casts doubt on the veracity and scientific validity of the evidence on which Reed’s conviction rests,” she wrote. “There is no escaping the pall of uncertainty over Reed’s conviction.”

Texas’s case against Reed has all but collapsed. Medical evidence suggesting Stites was killed on the morning of April 23, 1996, while she was on her way to work has been debunked; experts say she almost certainly died the night before, when she was at home with Fennell. A stream of witnesses with no connection to Reed have come forward with stories about Stites and Reed’s relationship and Fennell’s propensity for violence, flipping the state’s narrative and pointing to Fennell as a more likely killer.

“There is no escaping the pall of uncertainty over Reed’s conviction.”

Texas has rebuffed this evidence. While prosecutors haven’t offered anything meaningful to challenge the new witness accounts, they nonetheless insist that Reed’s conviction is righteous.

Testing physical evidence for DNA could resolve the lingering questions. But while the state has long pointed to the sperm DNA as key evidence that Reed is guilty, it has resisted testing crucial pieces of crime scene evidence that should, at least theoretically, bolster its case. Chief among the untested items are two lengths of a braided leather belt used to strangle Stites. Years of legal wrangling over Reed’s request to test this evidence is what finally landed his case before the Supreme Court.

In 2014, Reed filed a motion in state district court seeking testing of the belt and other items under the state’s post-conviction DNA testing statute, known as Chapter 64. Although the statute was passed in response to several high-profile embarrassments, many Texas defendants have struggled to access testing, in large part thanks to rulings from the Texas Court of Criminal Appeals, the state court-of-last-resort in criminal cases.

The CCA has long had a reputation for hostility to claims of innocence and efforts to secure DNA testing. Since Chapter 64 was enacted in 2001, the legislature has repeatedly amended it to address court rulings that severely narrowed eligibility, an approach lawyers say neuters the law. At times, the court’s rulings have been confounding. In one case, the CCA concluded that to obtain DNA testing, a defendant would first have to prove that DNA existed on the evidence in question — which is nearly impossible to do without DNA testing.

During a hearing on Reed’s DNA request in November 2014, prosecutors took a similar position, arguing that Reed could not prove DNA existed on the belt used to strangle Stites. The state also argued that because the items were handled by multiple people at Reed’s trial (including prosecutors) and then commingled during storage, the evidence was too contaminated to render any probative DNA results. Reed’s experts have countered this notion, explaining in detail why neither circumstance is particularly unique nor problematic.

Nonetheless, the district court ruled against Reed, writing that the state’s case against him was “strong,” meaning that even if DNA testing of the belt had been done before his 1998 trial, there was “no reasonable probability” that Reed would have been acquitted of Stites’s murder. The judge also concluded that Reed was seeking testing solely to delay his execution. Reed appealed to the CCA. Although it initially sent the case back to the district court, asking the judge to clarify his findings, the CCA ultimately affirmed the lower court’s ruling in April 2017.

Under Chapter 64, DNA testing can be ordered by the court only if the evidence “is in a condition making DNA testing possible” and has been “subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect.” The Bastrop County clerk, who is the custodian of evidence, testified that the items had been secured “under lock and key,” and none of them had been tampered with or altered in any way. But the CCA glossed over this and instead determined the evidence had been “contaminated” — a concept not contained in the statute. Reed asked the court to reconsider its ruling; the CCA denied the rehearing request via postcard roughly six months later.

Although the Supreme Court has ruled that there is no constitutional right to post-conviction DNA testing, if a state does provide access to testing, the process for obtaining it must be fair. The court has determined that a defendant may file a civil rights suit in federal court to challenge a process that is unfair. Reed filed such a suit in August 2019. The suit was dismissed, however, when the U.S. 5th Circuit Court of Appeals ruled that it was filed nearly three years too late.

Under the statute, Reed had a two-year window to file his federal claim after he was denied testing. According to the appeals court, Reed should have filed the suit in 2014 after he was denied testing at the trial court level. Reed appealed the decision to the Supreme Court, arguing that filing back in 2014 would have been premature since the CCA hadn’t yet considered his appeal. If the CCA had reversed the trial court’s decision and allowed DNA testing, then the whole matter would have been resolved — and taking the fight to federal court would have been a waste of time and resources. This spring, the Supreme Court said it would take the case. While the question before the court is technical, the consequences for defendants, and particularly those on death row, are substantial.

Texas death row prisoner Rodney Reed's mother, Sandra Reed, wipes her eye during a prayer rally organized by Death Penalty Action, in front of the U.S. Supreme Court prior to attending arguments in Rodney Reed v. Bryan Goertz case Tuesday, Oct. 11, 2022, in Washington. (AP Photo/Alex Brandon)

Rodney Reed’s mother, Sandra Reed, wipes her eye during a prayer rally in front of the Supreme Court in Washington, D.C., on Oct. 11, 2022.

Photo: Alex Brandon/AP

Moving the Goalposts

The oral argument in Reed v. Goertz began well after noon. The first case before the court that day, National Pork Producers Council v. Ross, consumed more than two hours, with lively back-and-forth between the justices and attorneys that included meditations on morality. “How broadly would you define immoral?” Justice Clarence Thomas asked a lawyer for the Humane Society of America, which argued that bans on gestation crates and other forms of animal cruelty followed a “moral tradition” in the United States.

If there was any irony to be found in the time spent pondering the confinement of farm animals set for slaughter versus the ethics of executing a human being who has spent most of his adult life in a cage, it went unacknowledged. By the time Reed’s attorney rose to make his case, much of the courtroom had cleared out, including the press section. The energy was of a workplace meeting where most people were thinking about lunch.

Much of the discussion focused on Texas’s dickering over when the statute of limitations clock began to tick.

The state has variously changed its position on this question. Texas has argued that the clock began after the state district judge first denied DNA testing in 2014; that it started two years later, after the CCA asked the district judge to revise his findings; and that it began in April 2017, when the CCA issued its opinion inventing the non-contamination rule. But where it definitely did not start, Texas Solicitor General Judd Stone told the court, was the rehearing date in October 2017, when the CCA denied Reed’s request to reconsider the case. Generally speaking, a person can take their legal fight to federal court only after a state claim has been exhausted. The rehearing denial was the court’s final word on the matter, closing any meaningful avenue for redress within the state’s legal system. This is when Reed’s lawyers say the statute of limitations clock should begin to run.

Under any scenario but the last, Reed would have filed his federal civil rights case after the statute of limitations expired. That seemed to be the state’s true goal: Move the goalposts just enough to eliminate Reed’s ability to seek DNA testing through the federal courts, even if doing so would create an arbitrary rule destined to create a confusing morass for everyone else. Many of the justices’ questions homed in on the logic of Stone’s position.

“Can I focus your attention on the difference between the date of the court of appeals decision versus the rehearing date?” Justice Neil Gorsuch asked. “Why should we prefer your view?”

Reed’s request that the CCA reconsider its ruling didn’t matter, Stone responded. “Rehearing changed nothing.”

“That’s just because rehearing was denied,” Justice Elena Kagan interjected. If it had been granted and the court had revised its previous decision, then Reed might be in a different position, which “we don’t know about until the end of the court of appeals process.”

“That seems like an awful waste of time.”

Stone said his proposed rules would take that into account. If rehearing had been granted and something had changed, then the statute of limitations would start running then. But that would create different clocks for different scenarios, Kagan pointed out. “Why isn’t the simpler rule just to say, ‘We don’t know what the authoritative construction of the court of appeals is until the court of appeals process is concluded.’ The end.”

Sotomayor noted that Texas has also said Reed should have pursued his federal court claim back in 2014, after the district court first ruled against him. Yes, Stone said. But if he does that and simultaneously appeals in state court, should the federal court wait to address Reed’s civil rights case? Sotomayor asked.

“It need not,” Stone replied.

“But it can?” Sotomayor asked.

“If the parties request that it wait —” Stone began.

“That seems like an awful waste of time,” Sotomayor said.

Justice Ketanji Brown Jackson echoed this concern. If the federal court would pause consideration of a civil rights case to allow state courts to weigh in first, how would Stone’s proposed rules makes any sense? “What’s the point?” she asked, nodding to Reed’s argument that the state’s position seemed designed “just to keep a prisoner from ultimately being able to bring a federal claim.”

Chapter 64 contains a process for appealing a district court decision to the CCA, Justice Amy Coney Barrett noted. How could Reed have gone to federal court in 2014 if he didn’t yet know what the CCA was going to do — and thus whether the law was applied in an unfair way? “I just don’t understand how the cause exists until the procedures have failed him,” she said.

Stone tried to explain but ultimately hit on this: The point of this dispute was to decide whether individuals like Reed who want to seek DNA testing through the federal courts can draw things out by availing “themselves of endless procedure in state courts.”

The state’s position seemed designed “just to keep a prisoner from ultimately being able to bring a federal claim.”

But Reed was just availing himself of the provisions of Chapter 64, Barrett noted. “The claim is that the procedure, as you said, was fundamentally unfair, but it’s not fundamentally unfair if the CCA could have corrected any mistake that the trial court had made, right?”

Chapter 64 provides for an appeal to the CCA, Stone said, but it says nothing about seeking rehearing in that court. (Despite the fact that rehearing requests are part of the normal CCA process.) All Reed was doing, he said, was trying to extend the time to file “for the purposes of, candidly, forestalling imposition of a capital sentence.”

Such dilatory behavior deprived the state of being able to retry Reed if he were to prevail in the courts, he said, because prosecution witnesses might die or develop dementia. Stone brought up the recent evidentiary hearing, claiming that Reed’s evidence was unreliable and his defenders were exploiting his innocence claim to delay execution. “Additional delay harms the state’s ability to be able to redress this if, for example, he is entitled to a new trial for one reason or another,” Stone said, “which he most emphatically is not.”

Parker Rider-Longmaid, who was arguing on Reed’s behalf, took aim at Stone’s assertions. The CCA called off Reed’s planned execution in 2019 not because of his Chapter 64 claim, but because of the mountain of evidence that now points to Fennell, not Reed, as Stites’s killer. That evidence is still under review. In addition to the troubling evidence Sotomayor laid out in her 2020 opinion, he noted, there is evidence that “Fennell admitted to killing Stites because he discovered she was sleeping with a Black man; that Fennell threatened to kill Stites if he caught her cheating; that Fennell made inculpatory statements at Stites’s funeral; and that Fennell and Stites’s relationship was fraught,” he said. These “are all serious things we think the court should consider.”

After the oral argument concluded, Reed’s mother, Sandra, exited the courtroom with her son and grandson. Members of Reed’s legal team held her hands for support. She looked tired and a bit overwhelmed. For more than two decades she had told her story to anyone who would listen, speaking at countless rallies and interviews. In recent years, Rodrick had taken over much of the public speaking. But Sandra remained a constant advocate for her son. Back outside, an attorney thanked her for being there. “I wouldn’t have missed it,” she said.

A ruling is expected in 2023. But there was no waiting on the court. The family’s next stop was an event at Howard University later that day, where Brittany joined her father in telling Reed’s story. However the fight for DNA testing might end, the truth was on their side, she said. As the evidentiary hearing showed, what’s hidden in the dark “always comes to the light.”

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