Dissent Episode Five: The Death Penalty, Deadlines, and DNA

Rodney Reed has spent 25 years fighting Texas for the right to DNA testing that could prove his innocence. Now the Supreme Court will weigh in.

Demonstrators in front of the Supreme Court Building protest against the death penalty in the Rodney Reed v. Bryan Goertz case, Washington, D.C., Oct. 11, 2022.
Demonstrators in front of the Supreme Court building protest against the death penalty in the Rodney Reed v. Bryan Goertz case in Washington, D.C., on Oct. 11, 2022. Photo: Jordan Tovin/Sipa via AP

Rodney Reed has been on death row since 1998 for the killing of a 19-year-old woman named Stacey Stites. Although Texas prosecutors said the case was open and shut, Reed has consistently maintained his innocence. Over the years, dozens of witnesses have come forward with evidence that undermines the state’s case, casting serious doubt on whether Reed is actually guilty. But Texas has refused to conduct DNA testing that could put lingering questions to rest. This week on Dissent, host Jordan Smith is joined by Intercept senior writer Liliana Segura to discuss the Supreme Court’s review of the case. Segura was in Washington, D.C., for the oral arguments, which focused on whether the statute of limitations for DNA testing has run out. Although it may seem like a straightforward question, it’s anything but — and the court’s decision could have life-or-death consequences for defendants seeking to prove their innocence.

[Dissent theme music.]

Jordan Smith: I’m Jordan Smith, a senior reporter for The Intercept. Welcome to Dissent, an intercepted miniseries about the Supreme Court.

Frank Somerville [KTVU Fox 2]: New at 10, in San Francisco tonight, a candlelight vigil was held in support of Rodney Reed. He is a Texas death row inmate who was granted a stay of execution. 

Victor Blackwell [CNN]: After more than 20 years on death row, Rodney Reed’s case is getting a second look.

Amy Goodman [Democracy Now!]: Reed’s attorney says a new investigation has uncovered evidence Stites was actually killed hours before state prosecutors claimed. The new timeline appears to implicate her fiancé Jimmy Fennell, a white former police officer, now in prison for sexually assaulting a woman.

[Low, percussive beats.]

JS: For the last two decades, I’ve been covering the case of Rodney Reed, a Black man on Texas’ death row. Reed was sentenced to die in 1998 for the murder of a white 19-year-old named Stacey Stites. Two years earlier, Stites was found dead on the side of a country road just outside Bastrop, a small city just east of Austin.

Chris Hayes [MSNBC]: Stites had been reported missing earlier that morning after she didn’t show up for her early morning shift at the H-E-B Grocery in Bastrop.

JS: Reed was linked to the murder by DNA evidence recovered from Stites’ body. It was the only thing linking him to the crime. At his trial, prosecutors called this evidence the “Cinderella slipper” of the case. They swore that Reed and Stites were strangers and that he had somehow waylaid her on the way to work early that morning, and then raped her and strangled her. 

Reed has always maintained his innocence and has said he was having a clandestine affair with Stites, which explained the DNA evidence. Over the years, an overwhelming amount of evidence has emerged, backed up his story, and has cast a harsh light on another suspect, one the state has virtually ignored: Stites’ fiancé, a man named Jimmy Fennell, a white cop from a neighboring town.

CH [MSNBC]: Police find a red pickup truck in a parking lot behind the local high school. A truck belongs to Stites’ fiancé, Jimmy Fennell, a Giddings police officer. He tells the Bastrop County Sheriff’s Department that Stites drove that truck to work. Jimmy Fennell then sits down with authorities to give his account of the previous evening.

JS: Dozens of witnesses have come forward with new information. Some have said that Reed and Stites did know each other. Others have said that Fennell and Stites had a troubled and violent relationship — that Fennell had found out about her having an affair and was furious about it. 

Despite all of this, Rodney Reed has faced execution multiple times over the past several years. His case is now before the Supreme Court. So I sat down with my friend and colleague Liliana Segura, who is also a senior reporter for The Intercept. And she’s also followed the case closely and was at the Supreme Court back in October for oral arguments:

Liliana Segura: I just wanted to sort of back up and pause for a second to say that Jordan’s reporting on Rodney Reed’s case, going back some 20-plus years, has really been critical to exposing a lot of this new evidence that we know about today. She’s really a big part of the reason that Rodney Reed today is one of the most well-known people on death row in this country. 

I first came to know about Jordan’s work on this case, long before I met Jordan, sometime in the early 2000s. I had met, at that time, anti-death penalty activists in Texas, who were fighting alongside Reed’s family to keep the state from executing him and insisting to anyone who would listen that he was an innocent man. And Jordan, to her credit, was really one of the only journalists who had seriously considered what they had to say early on. 

So I came to this case through the advocates who were connected to Rodney Reed’s family. And I remember his mother Sandra saying that she had been aware of her son’s relationship with Stacey Stites; among their family members, this was sort of an open secret. But it was also incredibly dangerous for a Black man to be involved in this way with a white woman who was engaged to a white cop. 

If you know anything about the history of the death penalty in this country, especially in the South, you know that this is a punishment that is inextricably connected to lynching, which was a form of vigilante violence that was justified as a way to protect white women from Black men. 

The last time we talked about Rodney Reed’s case on Intercepted some years ago, we discussed this history. So for anyone who wants to understand this context, which is really critical to this case, I would encourage folks to go back and listen. 

But, like I said, Rodney Reed has faced execution multiple times. And as he’s fought his case in the courts, he has repeatedly appealed to the courts, including to the Supreme Court, and asked them to intervene. 

So Jordan, maybe you can explain a little bit about what some of this past litigation has looked like, and how Rodney Reed finally got to the Supreme Court on October 11 of this year.

JS: You know, this is a lot of backstory. But it’s really important because it explains how many times he’s tried to get to the Court, and how many times his bid has been sort of rejected. And it also is important to understand, because the way that he gets to the Supreme Court now is in this really sort of narrow, technical way. 

So in Texas, there is a law called Chapter 64. And it governed post-conviction DNA testing. And that’s the law that Reed has been trying to avail himself of to get all this crime scene evidence tested. But the problem with the law is not the law itself, it is with the courts that interpret it, and particularly the Texas Court of Criminal Appeals, which has had a super long and antagonistic relationship with Chapter 64 — and really, with a lot of criminal defendants in general, especially those with claims of innocence. [Chuckles.] But that’s a whole other story, I suppose. 

Anyway, when a defendant asks for testing, if they get denied by the trial court or approved by the trial court, either way, it’s going to appeal, it’s going to go to the Court of Criminal Appeals. And what the Court of Criminal Appeals has done is take this law and interpret it as narrowly as possible, such that most defendants can’t even access testing. And that’s happened over and over again. And it’s actually forced Texas lawmakers to go back into the legislature and revise the statute a bunch of times trying to make it clear — to be clear, there’s nothing wrong with a statute, it’s the court, right? So they’re trying to make it clear: No court, we don’t want you to do X, Y, or Z. 

So when Reed goes to court, this is in 2014, he’s asking for this stuff to be tested. And the state just sort of throws up its hands and is like: ‘No way we can’t do that.’ And they invent a reason why. And the reason — they say — is because this crime scene evidence — critical crime scene evidence — has been stored improperly, essentially commingled, like items of evidence stored together. And the other problem they raise is that people had touched the evidence at trial, including prosecutors, without gloves on, meaning there was probable contamination, in their mind, with DNA sort of being contaminated and creating impossible mixtures that would be too hard to sort out to have any probative result. And so he gets denied. 

And it kind of goes back and forth between the trial court and the CCA for two years. CCA sends it back to the trial court in 2016, then it goes back up to the CCA, and the CCA in 2017 ends up being like: You know what? You’re totally right, this contamination thing is a complete issue. And the statute says you can’t have contaminated evidence. 

Well, the only problem with that is that the statute doesn’t say anything about contaminated evidence. And more to the point about that, a lot of jurisdictions, and a lot in Texas, store evidence commingled, right, and have over the years. I think, in certain places, things are getting better now. But people still routinely touch evidence without gloves on at trial. And people still routinely bundle evidence together when it’s being stored. And that’s on the state, because it’s their responsibility to maintain this stuff. So denying them because of that — denying DNA testing because of that — is a little bit ridiculous. 

But also, it’s really not that big of a problem. Because it happens a lot, DNA testing labs are actually used to having evidence that’s been commingled. And they actually have statistical tools and programs now that can try to tease out this probative DNA evidence, right? [Apply a] profile that might be of importance. 

And then here, really, we’re not looking for some rando. We’re looking for Jimmy Fennell to see if he is there. Anyway — but the court said: Nah, it’s been contaminated. And again, like I said, it’s not in the statute. So that’s, again, the CCA going outside the four corners of the statute to come up with a reason to deny the testing. And it’s that that really gets us to the Supreme Court. 

And this is like a little tiny bit more in the weeds. But there’s one little more piece of this: The Supreme Court has said years ago that there’s no right to post-conviction DNA testing. But what they’ve also said is that if a state is going to make a process for post-conviction DNA testing available, it has to be administered fairly. So if you don’t think that the state has been administering its DNA testing procedures fairly, you can then go to federal court, and you can file a civil rights suit, saying that this statute or the scheme is being interpreted in an unfair manner that’s denying you due process. And so that is what Reed ended up doing — after the CCA finally weighed in and said the contamination was a problem. 

So that’s how he gets to federal court.

LS: All of this context that you’re talking about is so important because it shows not only the sort of technical, legal posture that Rodney Reed has been in that has ultimately led to this, but it also shows just how maddeningly lengthy and complicated, and it is just this sort of mind-numbing process by which somebody ends up before the Court. It’s not actually about how meritorious the question is; it’s about any number of different factors that come together to happen to allow a person to make their case. And in this case, I mean, one thing that I think about, as you lay out some of this history is that Rodney Reed had asked the Supreme Court numerous times to take up different questions in his case, [laughs] including the very relevant question of whether it is constitutional to execute an innocent person — and that feels like an absurd question to be sort of posing in a legitimate legal setting. Of course, it shouldn’t be right to do that or allowable. Rodney Reed has tried so many times to try to bring different elements of his case, and the fact that it ended up being this very technical, narrow question that you’re talking about, just sort of shows the arbitrariness of what cases do get taken up. And at this particular moment, with the Supreme Court being what it is, there’s just no guarantee about how this is going to play out.

JS: Here is the technical situation that is before the court, it is: The state of Texas, said that this federal lawsuit Reed filed should go away, it should be dismissed, because they say he filed it too late. And so the argument is; When should he have filed it? Should he have gone to federal court and filed his civil rights claim back in 2014 when the trial court denied him? Or should he have done it in 2016, when the trial court made some sort of updated findings at the request of the CCA? Or should it be some time in early 2017, when the CCA first denied his claim? Or — [laughs] — should it be towards the end of 2017, when, after Reed had asked them to reconsider their case, they basically were like nah, and that is ostensibly what closes that whole chapter in state court? 

Now, according to the state of Texas, any of the first three dates would be the appropriate ones — just not the last one. Because if the last one is the one that really counts, then Reed did file his suit on time, right? So there’s a two-year statute of limitations on when you can file this kind of federal lawsuit, at least if you’re in Texas. And so the first three dates, the one in 2014, the one in 2016, or the one in early 2017, would mean that the state wins and Reed gets bounced from federal court and ostensibly loses any meaningful ability to ever test this evidence. But if he did the right thing and waited until the whole state court process was over — so the statute of limitations would start running at the end of 2017 — then he totally filed in time and he should be good to go. So basically, what the Supreme Court is here to decide is: Which of these dates is the dates that Reed should have filed?

LS: One thing that’s important to note about Reed’s journey to the Supreme Court and how many times he has unsuccessfully asked the Court to review the problems in his case, in 2020, Justice Sonia Sotomayor issued a very powerful dissent from the Court’s refusal to consider his case — and it’s really worth reading in full. But she highlighted some of the really profound questions that had been raised over Reed’s guilt over the course of these past 20-some-odd years, and really kind of called out Texas courts for refusing to confront them. And we included a part of what she wrote in our piece that we wrote after this oral argument, but I thought it was worth quoting at least part of what she said: “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 went on to write: “There is no escaping the pall of uncertainty over Reed’s conviction.”

So those are really powerful words. And this comes some, what, two years before the court finally gets ready to hear this case? So the fact that this question of innocence isn’t even the question before the court, it’s just one of those disconnects that is hard to wrap your head around when you truly understand and appreciate the stakes of what they’re actually talking about, rather than these deadlines, these absurd technicalities that ended up being litigated when the day finally arrives.

JS: Yeah, and I would say on that note, I think you should pick it up there because it was kind of an interesting day at the court. And you actually got to be there. Maybe you could tell us a little bit about how that day went. 

[Low music, and the sound of heels against the pavement.]

LS: So it’s Tuesday, October 11. There is a line around the corner of people waiting to get in to attend oral arguments. And this is the day that Rodney Reed’s case is coming before the Supreme Court.

LS: So I arrived at the Court probably a little bit after 9 o’clock. The scene outside the court was familiar in some ways: There were protesters, there were lines of people, there were tourists passing by, kind of taking it in. 

But one of the first things you saw when you walked up was a group of activists who were all wearing matching shirts and holding up these bright red signs and holding this huge black banner that said: “Rodney Reed is INNOCENT.”

Speaker: We ask just now that you would enter the hearts and minds of the justices who operate in the building behind us, move within them, oh God, a sense of justice and a holy sense of respect of life — respect of this brother’s life in particular, who happens to be innocent of the charges he was convicted on.

LS: And these activists were affiliated with an organization called Death Penalty Action. They have been protesting or rather they have been organizing around the death penalty for a long time and are very supportive of Rodney Reed and his family. 

So when I walked up, they were there, holding up their banner; there were speakers; there was some singing; and eventually, members of Rodney Reed’s family showed up and addressed some of the people who had gathered there. There was Rodney Reed’s brother, Rodrick Reed, who has been the most outspoken advocate in recent years, talking about his brother, being wherever he needs to be to advocate for him.

Rodrick Reed: Thanks, y’all, from the bottom of our hearts for coming out and praying and standing with us — not just today, but over all these years, you know?

LS: There was also Sandra Reed, who is Rodney Reed’s mother, who is getting on in years but has always, always been out front telling her family story and insisting that her son is innocent. 

And there was also Rodney Reed’s nephew, R.J., this is Rodrick’s son, and he is six years old and has essentially grown up going to demonstrations, going to these protests, is well aware of his uncle’s situation — in fact, he was only six weeks old when he first went to see his uncle on death row. Rodney Reed’s family has always been very public in their support of his case — not only him, but of other people on death row. So they had actually been to the Court many times. But on this day, it was the first time that they actually were there to attend this oral argument where they would watch lawyers on both sides, discuss and litigate these very technical questions.

JS: We’re not going to go into every nitty gritty piece of it because it’s a lot of word soup. But I think the real takeaway from the argument is that the state of Texas, who was represented in the court by its Solicitor General Judd E. Stone didn’t have any principled notion for why the earlier dates apply. Because it made no sense — like, no sense at all. It’s more just that they wanted to move the goalposts. They want all those early dates to be the right date for him to have filed so that they don’t have to deal with the testing. That’s it. There’s no lofty legal principle happening here whatsoever. It’s just simply that. 

And I think that, ordinarily, you wouldn’t go to federal court until your state court process had ended. So, for example, this whole idea that Rodney Reed should have gone to federal court in 2014, right after the lower court had denied him DNA testing, makes no sense. And basically, what would have happened if he’d done that, is the federal court would have been like: OK, what? You’re still in state court. We can’t do anything with this, right? 

But Texas thinks that’s OK. So basically, Judd Stone is saying that any of the dates that would deny Reed a chance to seek DNA testing in the federal courts are the right dates for the statute of limitations to start, the one date that’s not right is the date that Reed chose, and that date came after the CCA had denied rehearing in his case. So there was a bunch of discussion about why that wouldn’t be a good enough date.

A lot of the judges actually had some pretty good questions about Judd Stone’s idea for when this statute of limitations should kick in.

Justice Neil Gorsuch sort of kicked that off:

Justice Neil Gorsuch: Counsel, can I ask you to focus your attention on the difference between the date of the court of appeals decision versus the rehearing date? Why should we prefer your view to your colleague’s view on the rehearing date?

Solicitor General Judd Stone: A couple of reasons, Your Honor. The first of course being for purposes of this Court’s presumptive rule under Wallace, the actual constitutional violation that happened, the thing that caused the change of legal rights and decisions, was the judgment. 

Rehearing changed nothing about the rights and obligations under Texas law or the U.S. Constitution to Mr. Reed.

JS: And Justice Elena Kagan jumped in:

Justice Elena Kagan: That’s just because rehearing was denied. If rehearing had been granted and the decision had been revised, then it would have changed something. 

So why shouldn’t we understand that this claim of Mr. Reed’s, which is focusing on the authoritative construction, is focusing on the final authoritative construction, which we don’t know about until the end of the court of appeals’ process?

Judd Stone: Two points, Your Honor. 

First of all, our rule takes account of that. In the rare case — and to answer Justice Alioto’s question, it’s very rare that the Court of Criminal Appeals grants rehearing. In the rare case where there’s a rehearing and rehearing leads to a different decision, which then imposes an unconstitutional condition of some kind, that will be the accrual date. Very uncommon, but at least that will be the defined order which will have changed the rights and obligations of Mr. Reed and any other litigant like him. 

EK: But that suggests that there’s a sort of changing accrual date. First, we thought the accrual date was this, but now we think the accrual date is that. 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 has concluded, the end?

JS: And he was kind of all over the place, right? Like, on one hand, he’s arguing that it should have been 2014. On another hand, he’s arguing that it should have been 2017. Again, it’s not really because he has some principled rule in mind, it’s more that he just wants to deny Reed testing and make it more difficult for people like Reed, to challenge the state of Texas for post-conviction DNA testing. And that’s it. 

But it’s kind of crazy that we end up as a Supreme Court with this case, because as Judd Stone is in there talking about all this, this is a Supreme Court, they’re not just ruling in one case. So these other deadlines that Judd Stone is proposing would create chaos across the system. Nobody would necessarily know when they’re supposed to file. I guess I’m supposed to jump in here while my state process is still going on, or I guess when it first got remanded I should do that, or I don’t know! Nobody’s gonna know. Right? I mean, it’s kind of crazy. What did you make of all of that?

LS: This has always been striking to me the times that I have gone to the Court, which has generally been in a case involving the death penalty, or life without parole, which is that by the time a case gets to the Supreme Court, generally speaking, the sort of facts of a given case, the basic facts, what you’re talking about, these life or death issues, are lost in this unbelievably overwhelming sea of legalese, and trying to follow the average oral argument is really, really challenging even for lawyers, even for journalists who are sort of trained in some of this vocabulary. 

And I sat there and tried to listen to these oral arguments and follow them, I found myself quickly confused and lost. And part of it is because there are precedents in other cases and different legal technicalities that are hard to grasp in real-time. And part of it is also because literally, these arguments make no sense, actually. [Laughs.]

JS: [Laughing.]

LS: In the case of Judd Stone, he was very good at delivering lines and making an argument sound way more legitimate than it should be because of the technical nature of these arguments.

JS: He comes across like he’s got this great moral authority, and has this really legitimate legal argument. But when you start to peel the layers away, it’s just a jumbled mess. 

I had a friend who was talking about this with, a lawyer, and he said: Stop looking for a principled position here. There isn’t one. They just want to deny the testing. And in which case, they just want to make a rule that denies testing.

And I really think, unfortunately, that’s the case. People who know even a little bit about how appeals generally work would know that this whole notion that Rodney Reed should have run to federal court in 2014 is kind of bonkers. It just doesn’t work that way. 

Justice Sonia Sotomayor sort of raised this whole thing that we’re talking about, where if he had filed the federal appeal in 2014, what would the federal court do with it? So she had a few questions and a sort of back and forth with Judd Stone about that.

Justice Sonia Sotomayor: So you’re saying — what should the federal court do? Should it stay and wait until the appellate court says yes or no?

Judd Stone: It need not, Your Honor. I might point out for practical purposes, for specifically Mr. Reed’s claim, even had he waited past rehearing, even had he waited past certiorari being denied, he still had about 10 months left on his two-year clock. So the idea — 

SS: You’re claiming he was dilatory for putting all of that aside, you still maintain that there’s some practical importance to not letting him —  not exhaust but go through a pending appellate process?

Judd Stone: He may, Your Honor, if he wishes. But if he’s already suffered a —

SS: And so — 

Judd Stone: — constitutional violation —

SS: — now the federal courts should wait or not wait?

Judd Stone: It need not, Your Honor. 

SS: But it can? 

Judd Stone: If parties request that it wait, that would be —

SS: That —

Judd Stone: — that would be on a —

SS: —  seems like an  —

Judd Stone: — case-by-case basis.

SS: — awful waste of time.

JS: And our newest justice, Ketanji Brown Jackson, also was echoing these concerns, and was kind of wondering, what was the point of the TK gemstones argument?

Justice Ketanji Brown Jackson: What’s the point? If he goes to federal court pursuant to your rule, while he’s in state court, the federal court will just stay the action until the state court action concludes. 

So what difference does it make? I thought the most compelling part of Mr. Reed’s merits claim or argument was that none of the purposes of the statute of limitations, the principles behind that doctrine, obtain in your rule, that it doesn’t matter whether or not, other than just to keep a prisoner from ultimately being able to bring a federal claim.

LS: It’s really tricky being at the Court trying to read into the reactions from the justices. Everyone is craning their necks to see how is this justice responding to this argument. And I definitely did that over the course of this argument. And there were times that it felt like the justices were appropriately skeptical of the state’s position here. of Texas’ position here, or asking the right questions — and not just the liberal justices. There were a couple of moments involving justice Amy Coney Barrett, where she seemed to be asking the right questions and sort of identifying the illogical position being adopted by Texas here. 

Justice Amy Coney Barrett: Mr. Stone, I have a question about this suggestion that he could exit after the trial court denied the evidence because, I mean, maybe I’m thinking about this incorrectly, but in a procedural due process claim, the claim is that the procedures given by the state were not adequate to protect — to ensure an unconstitutional deprivation of the liberty interest.

And in the case of Article 64, the full run of the procedure includes the trial court and then the direct appeal, in a capital case, the direct appeal to the CCA, and then we can have this dispute about whether the petition for rehearing is included or not. But I don’t understand why he could exit at the trial court stage because the way Article 64 is set up, to ensure that he’s not deprived of a constitutional right erroneously, is to give him the opportunity to appeal to the CCA and let the CCA correct any mistake that the trial court has made.

So am I understanding that correctly? I just don’t understand how the cause of action exists until the procedures have failed him.

JS: Judd Stone tried to come up with an answer for Justice Barrett, but didn’t really come up with a good one. [Laughs.] Instead, he just sort of hit on the idea that the whole point of trying to force Reed out of court was to punish him for essentially carrying on appeals, like they just see this as him sort of endlessly appealing and inevitable execution, essentially. And he was quite emphatic that there was no way that Rodney Reed would deserve a new trial.

Judd Stone: This is not a narrow case. 

This is about whether or not individuals seeking to press Skinner-style claims are allowed to essentially avail themselves of endless procedure in state courts, whether or not procedurally defaulted —

ACB: Well, just the procedure that Article 64 gives — and I — I guess I don’t see how this particular claim would have accrued, been ripe to exit the suit at trial court after the trial court ruled because 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? 

These are about opportunities for the procedure to run its course in a way that would correct any unfairness or any mistake made below.

Judd Stone: I think there’s a basic difference between insufficient procedures due process claims and unfair procedures due process claims. 

But even if I’m wrong and you’re right, Your Honor, that still means Article 64 provides an appeal up to the Court of Criminal Appeals and nothing else. 

It does not provide him in its own terms with petitions for rehearing motions to recall the mandate, these other additional sort of miscellaneous potential motions that could extend the accrual date for purposes of candidly forestalling imposition of a capital sentence.

LS: She was asking the right questions. Some other justices were also asking the right questions over the course of the oral argument. And that’s very important. But if we’ve come to learn anything doing this work, and in particular this year at the Supreme Court, it’s that there is no real meaning to be found in asking the right questions. We have seen other cases where the justices seem to get it, they seem to understand that there is no real logic or law on the side of the state in a case like this, and yet, that does not guarantee at all that they will come down on the right side of this. 

We saw this on full display in the case of Barry Jones, who is another man with a very compelling innocence claim whose case went all the way to the Supreme Court. And earlier this year, the Supreme Court, despite having asked all of the right questions at that oral argument, despite seeming to grasp that Arizona’s position made no sense and would require them to reverse their own precedent, they came down on the side of Arizona and sort of seemed to say: Oh, well! We don’t really care about innocence. 

In fact, in that case, the state of Arizona’s refrain had been: Innocence is not enough. Even innocence is not enough to guarantee relief in this case. 

So that’s very important to keep in mind as we await a decision in Rodney Reed’s case. The Supreme Court truly does not care about innocence in any way that matters. And we have to be very clear about that. And no amount of asking the right questions is going to change that.

JS: I think it’s clear that the state doesn’t really care. And I suppose the biggest question is: Will the Supreme Court care?

LS: There is something really important about the current political moment we’re in, in which Americans right now are really questioning the legitimacy of this unaccountable, right-wing Court because we see increasingly how it exercises its power in very dangerous and consequential ways. One thing that I’ve been thinking a lot about since I was at the Court watching these oral arguments is that the Supreme Court, it’s not just that these arguments are awash in legalese. This is an institution that is just as awash in prestige; you attend these arguments; and you sort of feel important, you feel the weight of history and the weight of all of this pomp and ritual that you experience while you’re there. And all the ways in which we show great deference to these justices in a way that makes it easy to lose sight of some of the life-or-death issues that are being decided. 

It’s so important — and it’s always been true in death penalty cases — that when you whittle it down to its core, these are justices who are ultimately deciding whether a person like Rodney Reed is going to live or die — and be executed, in this case, truly on a technicality. And I think that those decisions and the arbitrariness of those decisions and how this plays out, that has always been true. It’s just that we’re currently in a moment where I think increasingly Americans grasp that maybe the Supreme Court shouldn’t have the power necessarily to rule our lives in quite the way that we’re seeing now. 

So it’s an interesting moment for this case to come up. I also want to say for all of the maddening legalese and inaccessible arguments that were on display over the course of this hour, there was a moment at the end that was like a balm because it finally reached a point where the truth of what was being discussed could be on display for everyone. And that was where Parker Rider-Longmaid, who was arguing on Reed’s behalf, finally sort of said, towards the end:

Parker Rider-Longmaid: Mr. Reed has a stay of execution from the Texas courts on his ninth subsequent habeas petition before the courts where he raised 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’ funeral and that Fennell and Stites’ relationship was fraught. We have all the other evidence that Justice Sotomayor has pointed to and is in the briefing, and those are all serious things we think the Court should consider. So I think, when you look at the fact that no one’s going to be able to get a stay of execution without some showing, there’s really not a concern of delay in cases like these.

LS: He really just laid it out in a way that might not have legal teeth, but that sort of acknowledged the truth of what we’re actually talking about, where the real facts of this case and the evidence that’s come out — the things that should matter the most — were finally uttered aloud. And that was really important.

JS: That was Liliana Segura, a senior reporter with The Intercept. 

[End credits music.]

JS: And that’s it for this episode of Dissent, a production of The Intercept. 

This episode was produced by Laura Flynn and José Olivares. Roger Hodge is editor in chief of The Intercept. And Rick Kwan mixed our show. 

If you’d like to support our work, go to theintercept.com/join — your donation, no matter what the amount, makes a real difference.

If you want to give us feedback, email us at Podcasts@theintercept.com. Thanks so much.

Until next time, I’m Jordan Smith.

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