Texas To Hold Off On Executing Potentially Innocent Man

Rodney Reed argues that police have the evidence that could prove him innocent.

Rodney Reed has been on death row for two decades. The entire time, he has proclaimed his innocence. More than that, he has argued that police already have the evidence that could prove his innocence. And yet, he remains on death row and the evidence remains untested.

Yesterday, two very unusual things happened. First, the Texas Board of Pardons and Paroles unanimously recommended Texas Governor Greg Abbott stop the execution. And then, amazingly, the Texas Criminal Court of Appeals issued an indefinite stay of execution and sent Reed's case back down to the lower courts.

Wow. So what's the story here?

Rodney Reed was convicted of the 1996 rape and murder of 19-year old Stacey Stites. DNA matching Reed was found inside of Stites' body, which prosecutors called the "Cinderella's slipper" of their case. But Reed has always said he was in a consensual relationship with Stites at the time of her murder. And most of the evidence prosecutors relied on at Reed's trial -- where he was convicted by an all white jury -- has been called into question.

Witnesses who say they knew about Reed and Stites's affair have come forward. The medical examiner who conducted the autopsy has acknowledged that Reed's semen could have been inside Stites' body from a sexual encounter the day before. Those three sperm cells are the only physical evidence linking Reed to the crime.

More than that, Reed believes prosecutors already have the evidence that will prove his innocence. Police found physical evidence -- including the murder weapon -- near Stites' body in 1998. Among this evidence are a belt, shirt, name tag, and two beer cans. Reed argues this evidence could prove his innocence, but prosecutors refuse to test it.

Forensic pathologist Michael Baden wrote in 2015 that it was his "opinion beyond a reasonable degree of medical certainty that, based on all of the forensic evidence, Mr. Reed is scheduled to be executed for a crime that he did not commit." Yet Reed's execution date remained. There is evidence that Stites' fiancé, Jimmy Fennell, killed her after finding out about the affair. Fennell is a former cop who ended up serving time for sexually assaulting a woman while on duty in 2007. Arthur Snow, who was imprisoned with Fennel, says Fennell told him , "I had to kill my n***** loving fiancé."

Stites' autopsy report says that a woven belt was used used to strangle her. Half of the belt was found near her body. The other half was found near Fennell's truck. In a civil rights complaint filed in August, Reed's attorneys argue that Fennell said on "multiple occasions" that he would kill Stites if she ever cheated him. During and after the investigation of Stites' death, Fennell made inconsistent statements about what had happened.

For his part, Fennell says he had nothing to do with Stites' death. "[Jimmy] continues to profess his innocence,"attorney Robert M. Phillips told Austin news outlet KXAN in March 2018. "He loved Stacey Stites. He was engaged to be married to her and the individual who raped and murdered her is properly on death row."

Rodney Reed is not a saint. DNA and witnesses have linked him to other sexual assaults. But that does not mean he killed Stacey Stites. Reed's attorney, Bryce Benjet, says Reed's detractors focus on these alleged crimes, which Reed has never been convicted of, "because there's no evidence actually supporting Rodney's guilt."

People as diverse as Ted Cruz, Oprah, Rhianna, Kim Kardashian West, and Meek Mill had all called for Reed's execution to be stayed.

Let's talk about DNA

DNA evidence can save innocent lives. According to the Innocence Project , there have been 367 DNA exonerations to date. 21 of those people served time on death row. Nearly 50% involved the misapplication of forensic evidence. 166 people have been freed from death row since 1973 and 21 of those were freed because of DNA testing. 70% of the 367 DNA exonerees were racial minorities.

Reed has been trying to get the evidence in his case tested for years. Reed's attorneys have said they will pay for the DNA testing, so it wouldn't cost the state a thing. Yet prosecutors' objections remain.

If you're wondering why law enforcement wouldn't want to test DNA evidence, you're not alone. That law enforcement would oppose testing that could set an innocent man free is appalling but not unusual. A 2001 study "found that prosecutors opposed DNA testing in nearly 1 in 5 cases that resulted in an exoneration."

Vanessa Potkin, director of post-conviction litigation at the Innocence Project, told The Appeal that during her time there, at least six people have been executed, despite the availability of DNA testing that could prove their innocence. Prosecutors fought against the testing in all of those cases.

"We have a human system we know it doesn't always get it right," she said. "It's pretty shocking when you get to a capital case, where the stakes couldn't be higher, to encounter prosecutorial resistance to simple tests that could get to the truth."

 Reed's attorneys have expressed their disbelief at the state's refusal to let them test evidence for DNA.

"It's really extraordinary that we have evidence that clearly could prove innocence, that would undoubtedly be tested if this was a murder investigated today," Benjet said. Yet "the district attorney and the attorney general's office have steadfastly refused to even make it possible to answer these basic questions as to guilt or innocence," he added.

The death penalty sucks

Texas kills more people than any other state. Since 1982, Texas has executed 565 people.

This is far from the first time adequacy of Texas's death penalty system has been called into question. A 2009 New Yorker article, "Trial by Fire ," goes into great detail on the case of Cameron Todd Willingham. Willingham was executed in 2004, after his three daughters were killed in a fire at his home. It is very possible that, when the state executed Willingham, it killed an innocent man.

Willingham's case also highlights several of the problems inherent in Texas's death penalty system. When Willingham filed a clemency petition with the Board of Pardons and Paroles, it was unanimously denied .

[Willingham's attorney] could not offer an explanation: the board deliberates in secret, and its members are not bound by any specific criteria. The board members did not even have to review Willingham's materials, and usually don't debate a case in person; rather, they cast their votes by fax—a process that has become known as "death by fax." Between 1976 and 2004, when Willingham filed his petition, the State of Texas had approved only one application for clemency from a prisoner on death row. A Texas appellate judge has called the clemency system "a legal fiction." Reaves said of the board members, "They never asked me to attend a hearing or answer any questions."

Willingham and Reed are not alone. According to The Appeal :

A 2014 analysis of past exonerations concluded that about 4 percent of people, or roughly 110 prisoners on death row are innocent. And Texas has executed innocent men before. The state executed Carlos DeLuna in 1989, though a subsequent investigation by Columbia University found that a key witness had misidentified him ... In August, Texas executed Larry Swearingen, who maintained his innocence until his final breath. The court said it stood by the "mountain of evidence" against him.

Now, Reed's case is raising new doubts about Texas's capital punishment system. As South Texas College of Law professor Kenneth Williams told the   Washington Post  ,

[Reed's stay of execution] is further reason for the public to question the death penalty process in Texas. You had someone who was so close to being executed convince the court --- a very tough court --- that he has at least a prima facie case that he's innocent. It's another black eye for the death penalty system here in Texas.

Oftentimes, procedural hurdles make it difficult, or even impossible, for death row inmates to present new evidence of their innocence in post-conviction appeals. Unbelievably, the Supreme Court ruled in 2009 case District Attorney's Office for the Third Judicial District v. Osborne , that convicted people do not have a constitutional right to bring post-conviction claims based on actual innocence. Not 1809 -- 2009. The opinion was written by Chief Justice John Roberts.

If it weren't for the highly publicized public outcry, it's likely that Reed would have been executed next week. Even strong public outcry is usually unsuccessful in stopping an execution. In 2011, Georgia executed Troy Davis, despite pleas from the likes of the NAACP, Amnesty International, Jimmy Carter, Al Sharpton, Pope Benedict XVI, and Archbishop Desmond Tutu. In 2014, Texas executed intellectually disabled prisoner Edgar Tamayo Arias, despite then-Secretary of State John Kerry and Mexican officials calling for new hearings. There are dozens of undocumented people on death row who were never notified of their right to contact their home country's consulate, in violation of US treaties and international law. The International Court of Justice has ruled against the United States, saying foreign nationals on death row whose rights were violated need to be granted new sentencing hearings. Yet the US Supreme Court thumbed its nose at the United States' legal obligations and the executions have continued.

What happens now?

The Texas Court of Criminal Appeals issued an indefinite stay of Reed's execution, but he remains on death row. The Court of Criminal Appeals ordered Reed's trial court to consider new evidence in the case, including evidence that points to Fennell as a potential suspect.

Although Reed remains on death row, this is a huge victory for him and his legal team.

"At every turn we have asked for a hearing at which we can present the evidence, in full, of Rodney Reed's innocence," said Bryce Benjet [.] "So it is extremely rewarding that we can finally have a chance to fully present his case in court, so it can be determined that he did not commit this crime."

Reed's family and supporters celebrated the decision .

"We believe that Rodney's going to be exonerated, and I knew that November 20 was a lie," Rodrick Reed, Rodney Reed's brother, said of the scheduled execution date. "That's the date the man set. God did not have that date set. I was just glad when God showed us that we were right in what we were putting our faith in and what we believed in."

...

"We can breathe a little bit because we were down to the wire — a matter of days, just a few days," Rodrick Reed said. "Now I got to remind everybody that this is great, this is a great victory, but this is just a small battle. This is not the war."

In any criminal case, it's important for the court to consider all possible evidence. But that is doubly true when we're talking about a capital case.

Whatever your feelings on the death penalty, we should all be able to agree that it's absolutely unacceptable for the state to kill an innocent man. The execution of an innocent person is nothing less than state-sponsored murder.

Yesterday was a win for justice and the rule of law, but we still have a long way to go.

[ WaPo / The Appeal / New Yorker / NYT ]