The conservative-majority Supreme Court is not a fan of death row prisoners or DNA testing. So it’s worth noting a recent decision that lets a man who was sentenced to death pursue such testing as he seeks to prove his innocence. Yet, this common sense outcome still split the court 6-3, with one of the dissenters, Clarence Thomas, taking solace in what he saw as the bright side: The man seeking DNA testing can still be executed.
Innocence wasn’t the issue at the Supreme Court in Rodney Reed’s case, which has been championed by celebrities like Kim Kardashian. Rather, the justices were sorting out a drier but important question over the statute of limitations: When did the legal clock start running for Reed’s claim?
Texas state trial and appellate courts denied Reed’s bid for testing certain evidence, such as a belt used in 1996 to strangle Stacey Stites, the white woman who Reed, a Black man, was convicted of killing.
Thomas’ hardest-right colleagues didn’t join his 20-page effort, which doubled as a prosecution memo against Reed.
Reed pressed a due process claim in federal court, challenging state procedures that denied him testing. But the 5th Circuit Court of Appeals (the same right-wing court that’s considering the pending abortion pill litigation) said Reed was too late, because, it said, the clock started running when the state trial court ruled against him. Reed argued that the ruling doesn’t make sense, because he was challenging state law, which is interpreted by the state appeals court, so the clock shouldn’t run until the state appeal is resolved.
The Supreme Court agreed. Writing for the majority, Justice Brett Kavanaugh observed that, if the clock started running with a state trial court denial, that would lead people to bring federal claims while appealing at the state level.
“We see no good reason for such senseless duplication,” Kavanaugh wrote on April 19 for the bipartisan majority, which included his fellow Republican appointees, Chief Justice John Roberts and Justice Amy Coney Barrett, plus the three Democratic-appointed justices — Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. It took only six pages to lay out this straightforward outcome.
The bulk of the judicial writing in Reed v. Goertz (Bryan Goertz is the district attorney in Texas who refused to allow the DNA testing) consists of dissent. The three dissenters were unsurprising: conservative Justices Samuel Alito and Neil Gorsuch, plus Thomas. But they dissented separately, with Alito’s dissent, joined by Gorsuch’s, being relatively restrained in its disagreement with the majority about when exactly the clock starts to run.
But Thomas’ hardest-right colleagues didn’t join his 20-page effort, which doubled as a prosecution memo against Reed while arguing that the man couldn’t even bring a federal claim. The justice, who’s been under scrutiny for undisclosed financial ties to a Republican billionaire, ended his solo dissent by effectively calling for Reed’s execution before his DNA claim is resolved. “If there is a mitigating factor to today’s decision,” Thomas wrote, it’s that letting the claim proceed “is no barrier to the prompt execution of Reed’s lawful sentence.” The justice went on to quote Reed’s lawyer at the oral argument last year, noting that the lawyer said, “You do not get a stay of execution just” for bringing a claim like Reed’s. Thomas said the state, therefore, “is free to take him at his word” — that is, to execute him. Of course, Reed’s lawyer wasn’t advocating for his client’s death. He was trying to head off the sort of concern raised by Republican justices like Thomas that death row prisoners raise tenuous legal arguments to delay the inevitable. In fact, had Thomas quoted the lawyer’s very next words from the argument, readers of his dissent would learn that Reed’s execution was already stayed by the state court, in other litigation that’s ongoing. Here are those next words from Reed’s lawyer, Parker Rider-Longmaid, who referred to a potential alternate suspect, white police officer Jimmy Fennell, to whom Stites was engaged: Mr. Reed has a stay of execution from the Texas 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 …. 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.
That is, ruling for Reed on this statute of limitations issue isn’t, on its own, going to automatically stop him or others raising similar claims from being executed. But the evidence of potential innocence that the lawyer cited makes Thomas’ already gratuitous call for Reed’s execution even more maniacal.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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