Rodney Reed's execution was stayed this month by the Texas Court of Criminal Appeals, and a lower court will now examine the evidence that Reed's lawyers believe will show he is innocent.
The case of Rodney Reed, who is scheduled to be executed in Texas on Nov. 20, is unique not only because of the celebrities promoting his claims of innocence, from Oprah to Beyonce to Dr. Phil. Numerous lawmakers—with the support of Sen. Ted Cruz of Texas—are calling for the execution to be halted. So are several law enforcement officers, who told the U.S. Supreme Court that the “the forensic case against Mr. Reed has been completely obliterated.”
The case is unique also because of the sheer volume of evidence implicating someone else for the crime for which Reed was sentenced to die, the 1996 murder of Stacey Stites, in Bastrop, Texas. Although his semen was found on Stites’s body, Reed, who is black, has maintained he was in a consensual relationship with Stites, who was white. Witnesses have come forward with evidence that points to former police officer Jimmy Fennell, who was Stites’ fiancé at the time of her death. Late last month, Reed’s lawyers at the Innocence Project unveiled an affidavit from a man saying he heard Fennell boast, “I had to kill my nigger-loving fiancé.” Fennell has never been charged and, through a lawyer, has denied killing Stites. (Jordan Smith at The Intercept offers the most comprehensive account of where the case stands.)
And yet, Reed’s situation also is all too common: every death row prisoner in the United States faces high barriers when they want to argue they are innocent after trial. Reed isn’t even the only death row prisoner this month facing execution while struggling to present new evidence of innocence. On Wednesday night, Georgia plans to execute Ray Cromartie for the 1994 shooting of a store clerk, despite a new affidavit suggesting another man actually shot the clerk.
It’s impossible to tell exactly why Reed’s case has gone viral while so many others, like Cromartie’s, have not; but what they all share is a years-long struggle to present evidence in state and federal courts courts and then, when that fails, a last-ditch public campaign for clemency from a governor or president.
It wasn’t always this hard for death row prisoners to have new evidence considered.
“There was a time in the 1970s and 1980s when you could bring claims of newly discovered evidence to the federal courts,” said Robert Dunham, executive director of the Death Penalty Information Center in Washington D.C. In the early 1990s, concerned about how long death penalty cases were taking, the Supreme Court began limiting this ability, stressing the importance of “finality.”
The court heard the case of Leonel Herrera, who was on death row in Texas for the 1981 murder of police officer Enrique Carrisalez. Herrera’s lawyers submitted affidavits like the ones in the Reed case, in which witnesses said another man had confessed to the crime. Herrera himself had confessed to fatally shooting a second law enforcement officer, David Rucker, but Herrera’s lawyers argued his confession was coerced and that executing an innocent person would be “cruel and unusual punishment.”
Herrera had appealed unsuccessfully in state courts, and state lawyers now argued that courts were faced with having to decide whether someone is guilty over and over again, leading to repeated stays of execution. A trial would become no more than a “preliminary” round of figuring out if someone was guilty.
The Supreme Court agreed in 1993. Chief Justice William Rehnquist said federal courts shouldn’t “relitigate state trials,” and that prisoners would need to prove that their constitutional rights had been violated in some other way, such as prosecutors hiding evidence or a trial defense lawyer being ineffective. Justice Sandra Day O’Connor admitted in a concurrence that “the execution of a legally and factually innocent person would be a constitutionally intolerable event,” but also thought Herrera himself “is not innocent, in any sense of the word.”
Herrera was executed, and some debate remains about the court’s position. But in 2009, Justice Antonin Scalia wrote, “This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”
Following the Herrera decision, courts throughout the country produced a dizzying array of legal standards that death row prisoners have to meet for judges to consider their innocence claims. The Fifth Circuit Court of Appeals, which rules on Texas cases, is especially restrictive. Reed’s lawyers are now asking the Supreme Court to look at all these different standards and clarify “the scope of constitutional protections for the actually innocent.”
Lawmakers have also restricted death row appeals. In 1995, the Texas Legislature decided to allow those on death row a single “petition for writ of habeas corpus,” their primary tool to bring in new evidence, and set a six-month deadline for filing them once a lawyer is appointed. A year later, Congress and President Bill Clinton followed suit, enacting a one-year deadline for bringing claims in federal court.
As The Marshall Project reported in 2014, defense lawyers have frequently missed this deadline. But even a conscientious lawyer might not find everything in time. “Cops will tell you that while most cases are solved quickly, some take longer, and you have to wait for a particular witness to come forward,” said George Kendall, a capital defense lawyer who in 2013 represented law enforcement officials as they made this point in a brief to the Supreme Court.
Kendall thinks that even if Reed is executed, his case will not go away, because more people could come forward with memories that implicate someone else: “Five years from now, two or three people might say, ‘I can’t go to my grave with this.’” After the executions of Texas prisoners Carlos DeLuna, in 1989, and Cameron Todd Willingham, in 2004, researchers discovered a great deal of evidence pointing towards their innocence.
The victim in the Reed case, Stacey Stites, worked at a grocery store, and in 2014 one of her former coworkers, Alicia Slater, contacted Reed’s lawyers and said that before the murder Stites “told me that she was sleeping with a black guy named Mr. Reed and that she didn’t know what her fiancé would do if he found out.” Why had Slater waited nearly two decades to come forward? “I knew Jimmy Fennell was a cop and didn’t trust the police in Bastrop,” Slater told Reed’s lawyers. “If I said something to accuse a police officer, I was afraid there would be repercussions for my family.”
The Texas Court of Criminal Appeals, the highest state court for death row appeals, has ruled that executing an innocent person would violate the U.S. Constitution’s guarantee of “due process.” But the judges make case by case decisions about whether evidence is convincing. The court has rejected new arguments from Reed’s lawyers numerous times, including reports from experts who have examined Stites’s autopsy and found she died far earlier than prosecutors claimed at trial. Many of these arguments are in a brief Reed currently has before the Supreme Court.
The Texas court has also rejected Reed’s requests to test DNA from the belt used to kill Stites. Lawyers for the state say the new testing will only further cloud the truth because “the lack of Reed’s DNA on any item does not prove innocence.” Reed’s lawyers are still seeking this testing in federal court.
If no court steps in, the only person who can stop Reed’s execution is Texas Gov. Greg Abbott, who has the power to delay an execution for 30 days. (He can also free Reed from death row, but only if a state board—appointed by the governor himself—recommends it.) Courts respond to evidence and legal arguments, whereas elected officials respond, at least in theory, to pressure from voters—including celebrities, law enforcement officials and lawmakers. The question now is whether Abbott will feel any of that pressure.