Rodney Reed was convicted by a Texas jury in 1998 and sentenced to die for the rape and murder of 19-year-old Stacey Stites two years earlier. On April 23, 1996, Stites’s body had been found on the side of a country road outside of Bastrop, Texas. Marks on the woman’s neck led investigators to conclude that she had been strangled, and she had had sexual relations with someone before she was killed.
Police tested the recovered DNA against that of Reed, then 29 years old. There was no other evidence tying Reed to the murder, other than the fact that he initially lied to police, claiming that he didn’t know the victim. Finally, Reed said that he was having a sexual affair with her, and that the two had sex a couple of days before Stites was found dead. The witnesses Reed’s defense called to confirm the relationship between the two were not convincing, for varying reasons. It didn’t help Reed’s cause that he was regarded as a serial sex offender, with many arrests on his record.
As The Intercept explains in detail, the case against Reed has deteriorated over time, and was never strong to begin with. Many forensic pathologists have concluded that the verdict lacked scientific support. The medical examiner who conducted Stites’s autopsy has recanted his testimony. In 2018, both a state crime lab and a private DNA lab undercut the testimony of their own employees who had testified at Reed’s trial. Nonethless, Reed is scheduled to be executed in five days, on the 20th of November.
The new evidence indicating that he was wrongly convicted has not been reviewed by a court and apparently will not be because of the judicial principle of finality, the very old concept that hold that legal disputes at some point achieve a resolution that cannot be appealed and must be regarded as final. The principle is deemed necessary because without it, the public could not trust in the meaning of any law, or the result of any legal process. It is a utilitarian principle: individual cases may have unjust results occasionally, but the system as a whole benefits from the certainty of finality.
When the finality principle will result in the execution of a someone who appears to have been wrongly convicted, however, the gap between law, justice and ethics is difficult to accept. The Supreme Court will consider Reed’s case today. There is also a plea to Abbott and to the Board of Pardons and Paroles to intervene.
“The courtroom doors are effectively closed to Mr. Reed due to the procedural bars that prize finality of a conviction over the consideration of late-emerging evidence,” Martinez wrote this week, saying in part,
“Each building block of the state’s theory of Mr. Reed’s guilt—including the time of Ms. Stites’ death based on DNA found in her body; the truthfulness of Ms. Stites’ fiancé’s testimony; and the lack of credible proof of a consensual affair between Ms. Stites and Mr. Reed—has now been called into question…In a case such as this, where significant evidence of innocence has not been considered because of procedural limitations, a board recommendation for a grant of executive clemency may be necessary to prevent an irreversible act…The clemency power—enshrined in both the U.S. and Texas constitutions—is often the final chance to catch such mistakes and prevent an injustice that cannot be undone…In recognition of the important safeguard function served by the board, Texas law provides a flexible clemency power that allows you to seek the truth in a case in the way that courts often cannot, particularly in the late stages of a capital case”
The odd process in Texas is that the Board can review the evidence and recommend that Texas Governor Greg Abbott grant a condemned man clemency. Abbott cannot grant clemency without the Board’s approval, and even with that approval, he is not obligated to follow such a recommendation. As The Intercept ominously points out, it would be remarkable if Abbott did so:
Abbott previously served as the state’s attorney general, and his office fought to uphold Reed’s conviction. During his 12-year tenure as attorney general, the state executed 278 people, including at least one innocent man. As governor, he has only once intervened in a capital case; since he took office in 2015, Texas has executed 47 people, including those with strong claims of innocence.
It seems inconceivable that a man like Rodney Reed is likely to die, never mind continue to be incarcerated, when the evidence that he was wrongly convicted is so strong. Finality is an important concept, but in such a case there is no way it can bolster public trust in the justice system and the rule of law when it results in such a flagrant miscarriage of justice. Someone—the Paroles Board, Governor Abbott, SCOTUS, someone—needs to fix this.
The Intercept’s account concludes,
In filing their petition with the Board of Pardons and Paroles on October 30, the lawyers included a new potential bombshell. This time, it was not a member of law enforcement who came forward but a member of notorious prison gang the Aryan Brotherhood. At this point, it’s hard to know what exactly to make of the witness’s story, but given the serious nature of the allegation — and the irrevocability of an execution — it’s another piece of potential evidence that demands attention.
Arthur Snow, Jr. grew up in a racist household and has been in and out of prison or jail for most of his life, he swore in an affidavit attached to Reed’s clemency bid. Behind bars, he became a leader of the notorious white supremacist prison gang. Back in 2010, he said he was imprisoned in South Central Texas where he came to know a man named Jimmy Fennell. Fennell sought protection from the gang. One day on the rec yard, Snow said Fennell confessed to him. “He was talking about his ex-fiancé with a lot of hatred and resentment,” said Snow, who is currently in jail and just this week pleaded guilty to a domestic violence charge. He said Fennell told him that Stites had been sleeping with a black man. “By the way Jimmy spoke about this experience, I could tell that it deeply angered him. Toward the end of the conversation Jimmy said confidently, ‘I had to kill my nigger-loving fiancé.’”