Prove Your Innocence or Die: Supreme Court Justice Questions Rodney Reed Conviction

Although the Supreme Court declined to review Rodney Reed’s case last week, Justice Sotomayor urged Texas courts to take a hard look at new evidence that raises doubt about whether Reed is actually guilty of the murder for which he’s sentenced to die. “There is no escaping the pall of uncertainty over Reed’s conviction,” Sotomayor wrote.

But due to the nearly impossible task of proving innocence under our post-conviction rules and legal standards, the outlook is bleak for Reed despite mounting evidence establishing that he did not murder Stacey Stites. This evidence includes affidavits establishing that Stites was having an affair with Reed (a Black man) and Stites’ abusive fiancé Jimmy Fennell bragged about murdering her as racially-motivated revenge.

While this evidence would have been compelling to a jury considering whether there is a reasonable doubt about Reed’s guilt, the legal standard for actual innocence claims permits a judge to declare that these witness statements fail to rise to the level of “clear and convincing evidence” establishing Reed’s actual innocence. This happens all the time — Reed’s case is no exception (other famous recent examples are Steve Avery and Brendan Dassey from Making a Murderer, Adnan Syed from Serial, and Michael Peterson from The Staircase).

In order to prevail, Reed must hope that the Texas judges heed Justice Sotomayor’s advice: “In the instant petition for a writ of certiorari, Reed has presented a substantial body of evidence that, if true, casts doubt on the veracity and scientific validity of the evidence on which Reed’s conviction rests. Misgivings this ponderous should not be brushed aside even in the least consequential of criminal cases; certainly they deserve sober consideration when a capital conviction and sentence hang in the balance.”

As a criminal defense attorney in Austin, Texas, for the past 15 years, I regularly file applications for writ of habeas corpus, which is the procedural vehicle for overturning wrongful convictions. During this time, I’ve watched our courts bend over backwards to preserve convictions, often using obscure interpretations of procedural rules as the rationale for refusing to consider the merits of new evidence. And even when courts consider the merits, defendants almost always lose because the legal standard gives judges too much leeway to reject their claims.

Prosecutors, who are interested in preserving their convictions, create further procedural barriers by habitually opposing evidentiary hearings, where a defendant would have a fair opportunity to develop the new evidence. And these same, biased prosecutors essentially write the “findings of fact” for the courts. A recent study of Harris County death-penalty cases by the UT Capital Punishment Clinic revealed that judges “rubber stamped” the prosecution’s version of events in 95% of the cases, often signing them so quickly that it’s clear the judges didn’t bother to read the findings. In fact, 34 out of the 40 judges adopted every proposed “finding of fact” presented by the prosecutor — that’s an astounding figure because it’s impossible for the prosecution to be right 100% of the time, especially in today’s America where so many crimes and convictions are racially motivated.

The bottom line is that our justice system is literally executing people without affording them the opportunity to fully present their claims. If we’re serious about preventing wrongful executions, then it’s the law that needs to change first, as it currently provides the means for judges to deny the claims of potentially innocent people by erecting a Herculean barrier.

In order to overturn a wrongful conviction under Texas law (and the law in most states), the new facts must establish innocence by clear and convincing evidence. There’s no middle ground whereby a court can grant a new trial on the basis of evidence raising a reasonable doubt. Rather, the court either decides that the defendant is innocent, in which case their freedom is restored, or the court decides that the defendant has not met the high burden of proving innocence. It doesn’t help that the State has to pay a lot of money to people who are declared innocent, making the judges even more reluctant to grant such a claim.

This legal standard sets the bar far higher than the threshold for a jury to convict a person in the first place. Thus, in Rodney Reed’s case, the relevant legal question is not whether there’s a reasonable doubt about his guilt, but whether Reed can marshal enough proof to convince a court that he’s innocent.

This law leads to intolerable results, as Texas can legally execute a person even when new evidence creates enough doubt that no reasonable juror would have convicted that person. Also, the legal standard provides a crutch for judges who value finality over accuracy, as they can simply dismiss newly-discovered evidence claims under the rationale that the defendant cannot accomplish the nearly impossible task of establishing innocence by “clear and convincing” evidence. Unless a defendant is lucky enough to find DNA evidence that proves their innocence, the courts aren’t going to overturn the conviction.

And despite Justice Sotomayor’s comments last week, you can usually forget getting help from the Supreme Court. They’ve held that federal courts don’t have to consider a claim of actual innocence if the defendant was convicted at a trial free of constitutional violations. While four justices declared that such a ruling shocks the conscience, the late Justice Antonin Scalia coldly rejected this argument: “If the system that has been in place for 200 years (and remains widely approved) ‘shocks’ the dissenters’ consciences … perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of ‘conscience shocking’ as a legal test.”

Judging from the reaction to Rodney Reed, most of America, including Justice Sotomayor, disagree with Scalia. If the system is creating outcomes that shock our consciences, then it’s time to fix the system.

If you or someone you know in Texas has questions about post-conviction relief or criminal defense, call (512) 269–0260 or visit

Chris Perri is a criminal defense attorney based in Austin, Texas. Learn more at

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store