Death row inmate Rodney Reed’s quest for DNA testing, denied by prosecutors and the state’s highest criminal court, has gained the support of Michael Morton, who had to fight Williamson County’s top prosecutor for more than six years before getting the DNA test that proved his innocence after almost 25 years in prison.
Seeing parallels to his situation, Morton has asked the U.S. Supreme Court to approve Reed’s request for DNA testing on the murder weapon and other crime scene evidence from the 1996 Bastrop-area killing that sent Reed to death row.
Prosecutors have fought to deny Reed access to the evidence for almost four years, arguing that it has been contaminated by repeated handling during and after Reed’s 1998 trial.
But Morton said prosecutors are ignoring techniques that filter out or identify extraneous DNA and overlooking modern testing methods that can bring clarity to criminal cases, particularly when an inmate is trying to prove innocence and the items — as in Reed’s case — have never been tested.
“We won’t know until we do it. Nobody knows until you have a test,” he told the American-Statesman. “Contamination will always be an issue, but sometimes you have to run that test to be sure.”
Last year, however, the Texas Court of Criminal Appeals denied Reed’s request for DNA tests, saying the possibility of cross-contamination limited the usefulness of most of the items he wanted examined.
In its unanimous ruling, the Texas court said much of the crime scene evidence had been mingled in boxes after having been handled repeatedly by lawyers, prosecutors, court employees and possibly jurors during Reed’s trial — making skin-cell DNA identification unreliable.
Reed appealed to the Supreme Court, and a legal brief filed on Morton’s behalf argues that the Texas court mistakenly created a contamination exception that is not found in the state law that gives inmates access to DNA tests that may not have been available when they were tried and convicted.
“If the (Texas court’s) decision is allowed to stand, it is a virtual certainty that many more innocent people will be deprived of the opportunity to obtain freedom and, in capital cases, their opportunity at life itself,” the brief said.
The Morton brief was joined by Anthony Graves, who had been sentenced to death before being exonerated in the 1992 murders of six people in Somerville, and the Innocence Network, whose members provide free legal help to inmates who might have been wrongly convicted.
Since Reed was sent to death row for the strangulation murder of 19-year-old Stacey Stites, defense lawyers have engaged in an aggressive, prolonged — and thus far unsuccessful — campaign to overturn his conviction on appeal.
They claim Reed is innocent and that the most damning piece of evidence at his trial — his sperm inside Stites’ body — was not due to a sexual assault as described by prosecutors but was instead the result of a secret sexual relationship with Stites, who was killed 2½ weeks before her wedding to fiancé Jimmy Fennell. Reed’s lawyers say Fennell is a likelier suspect in the murder, perhaps after discovering the affair. Fennell has repeatedly denied the accusation.
Defense lawyers are pressing for access to crime scene evidence that was likely touched by the killer, including Stites’ clothing and two pieces of the belt used to strangle her, to determine if modern testing methods will reveal skin cells and other DNA-bearing evidence.
In an 8-0 ruling in April 2017, however, the Court of Criminal Appeals rejected the request, saying that problems with the chain of custody of the evidence raised questions about contamination and serious doubts that DNA testing would produce reliable results.
The brief from Morton and Graves argues that the Texas court should not have used the law’s chain-of-custody language — which requires testing to be done on evidence that has not been “substituted, tampered with, replaced or altered” — to deny Reed’s request for DNA testing by inventing a contamination exception that is not part of the law.
What’s more, they argued, the Texas ruling created an unfair standard that penalizes Reed and other inmates for evidence-storage policies and practices implemented by prosecutors.
“The evidence involved frequently is decades old, and it often was not collected, examined, used at trial, or stored in a manner that contemplated the sensitivity of modern — or any — DNA testing methods that did not yet exist,” their brief said.
The Morton-Graves brief also noted that 31 other states have DNA testing laws that include similar chain-of-custody requirements, raising the possibility of courts in those states adopting similar restrictions if they choose to follow the Texas court’s lead.
A separate pro-Reed amicus brief by 13 retired state and federal judges encouraged the Supreme Court to adopt clear standards for ensuring that inmates in every state — including Reed in Texas — have fair access to DNA testing in light of chain-of-custody concerns.
Prosecutors in the Texas attorney general’s office have until May 7 to file a response to Reed’s arguments.
A new trial?
In an earlier phase of the case, however, prosecutors argued that Reed’s request should be denied under the state law’s chain-of-custody rules that bar testing on evidence that had been tampered with or altered.
“The ubiquity of ‘touch’ DNA, combined with the undisputed testimony that these items have been handled by numerous individuals without gloves, prove that such items have been ‘tampered with’ or ‘altered in any material respect,’” they told the Court of Criminal Appeals.
Now 50, Reed was 10 days from execution in February 2015 when the Texas appeals court stepped in to order a closer look at his request for modern DNA testing.
The same court has yet to rule on a separate appeal seeking another trial for Reed based on new testimony about Fennell’s whereabouts before Stites was killed and testimony from forensic experts who said Stites had been killed around midnight, when she had been alone with Fennell in their Giddings apartment.
A state judge who examined the evidence found it unpersuasive and recommended that the Court of Criminal Appeals reject Reed’s request for a new trial.