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Texas Death Penalty Cases At High Court Raise DNA Issues

Two capital cases have wound their way through the Texas state criminal courts to the U.S. Supreme Court, highlighting substantial concerns with the state’s criminal justice system involving DNA and the death penalty. Both cases rely on questionable scientific evidence presented by the state to obtain death penalty sentences. Both cases also involve questionable rulings from Texas Court of Criminal Appeals (CCA).


In one, the prosecution conceded error and now agrees the defendant should get a new trial. In the other, a U.S. Supreme Court justice opined that the nature of the conviction is highly problematic. Despite these influential positions, the Texas Court of Criminal Appeals has denied new trials for both defendants.


Escobar v. Texas (Supreme Court case no. 21-1601)


Areli Escobar was convicted in 2011 for the murder of a woman who lived in his same apartment complex in Austin, Tx. The state relied on fingerprint analysis, cell tower records, mixed sample DNA evidence, and a bloody shoe print. There were no eyewitnesses and no known connection between Escobar and the victim.


All of the pre-trial fingerprint comparisons excluded Escobar. Mid-trial and mid-testimony, the prosecutor asked the print examiner to reexamine a partial, low quality, bloody print found on a lotion bottle in the victim’s apartment. On the witness stand, the examiner changed position and concluded it perfectly matched the middle joint of Escobar’s left ring finger.


The cell tower data showed Escobar’s phone at the apartment complex where both he and the victim lived, but it did not show that he was at or near the victim’s apartment—only in the complex.


Before trial, the mixed DNA sample collected in the victim’s apartment was analyzed and the crime lab could not identify Escobar’s DNA. At trial however, the state’s DNA experts testified that Escobar’s DNA “could not be excluded” from one sample collected at the scene—the victim’s apartment. The testifying DNA analyst further stated that she had found at least three other people with the same DNA profile as Escobar in the database she used to draw her conclusions.


The experts also testified that the victim’s DNA “could not be excluded” from mixed DNA samples collected from Escobar’s car, shoes, shirt, and jeans. The prosecutor nonetheless assured the jury that the DNA analysis was legitimate and reliable, noting the lab’s accreditation and use of scientifically sound analysis protocols.


Four years later, following a national FBI alert about discrepancies in DNA labs and their mixed DNA interpretation protocols, the Texas Forensic Science Commission (TFSC) called on all state labs, including

Austin Police Department’s (APD) lab, to apply “current and proper [DNA] mixture interpretation protocols” to previously analyzed samples. Some labs who followed the guidance showed “dramatic changes” to their conclusions. APD refused to reanalyze and correct its protocols.


The Travis County District Attorney then initiated its own review of APDs methods and found the same questionable analysis and conclusions. APD’s analysts still refused to reanalyze and reinterpret previous

analyses (including Escobar’s) under current, scientifically accepted protocols.


APD’s intractability led the TFSC to conduct an in-person audit in 2016. This audit reinforced the previous concerns and showed a number of significant issues. As a result, APD lost its accreditation and was closed in 2016—it remains closed.


Escobar’s 2017 state habeas writ—relying in large part on the APDs documented troubles—resulted in an order sending the case back to the District Court for factfinding. The District Court issued a thorough series of findings and legal conclusions, ultimately noting that the state’s reliance on the faulty DNA analyses to secure a conviction violated Escobar’s rights to due process.


This ruling led the state to reexamine and ultimately change its previous position opposing a new trial for Escobar. The District Court’s findings and conclusions, as well as the State’s changed position were submitted back to the Texas Court of Criminal Appeals.


The CCA remarkably denied relief on all grounds. The state asked the court to reconsider, suggesting it may have missed that the state agreed a new trial was warranted. The CCA again denied relief.


Escobar petitioned the U.S. Supreme Court for review. On October 28, 2022, Escobar v. Texas was

distributed for to the Justices to consider whether his petition for review should be granted.


Reed v. Goertz (Supreme Court case no. 21-442)


Rodney Reed was convicted in 1998 for the murder of Stacy Stites. Reed initially denied knowing Stites, but later acknowledged the two had been secretly involved—secretly because Reed is Black, Stites was white and engaged to a white police officer, Jimmy Fennell.


DNA testing confirmed the presence of Reed’s semen in Stites’ body, but no other physical evidence connected him to her murder. No DNA testing was completed on the alleged murder weapon – a braided belt whose pattern was imprinted on Stites’ neck.


The state’s case relied primarily on the DNA connected to Reed, testimony from Stites’ fiancé (Fennell), and scientific testimony about the time of death—based largely on Fennell’s testimony establishing a timeline before Stites’ body was found and how long sperm can remain viable.


In 11 habeas applications filed over two decades, Reed presented appellate courts with new evidence, expert challenges of the scientific evidence admitted in his trial, and argued that key pieces of evidence had never been analyzed for DNA.


New evidence included the fact that Reed’s experts refuted the claim that sperm cannot survive longer than 26 hours, noting it can live for days, much longer than the time period between Stites’ murder and when the swabs were taken.


At trial, experts testified that the blood pooling in Stites’ body showed she was killed after Fennell said he last saw her—3:00 a.m. In subsequent years, Reed’s experts refuted the trial testimony, noting the blood pooling evidence showed it was medically impossible that Stites was killed after 3:00 a.m.


An arguably unbiased witnesses—not connected to Reed, but related to Stites—confirmed their secret relationship.


An undisclosed witness, and fellow officer of Fennell, told the state three key pieces of information, (1) that Fennell knew about the relationship between Stites and Reed, (2) that Fennell was enraged Reed was Black, and (3) that Fennell’s account of his whereabouts the night Stites was killed were notably different from what he testified to at trial.


In 2008, Fennell was convicted of kidnapping and sexually assaulting a woman he encountered while on duty. While in custody, he interacted with another inmate connected to the Aryan Brotherhood. This inmate filed a sworn affidavit that Fennell acknowledged the affair and that he killed Stites because the affair was with a Black man—a point of pride because of the inmate’s connection to the Aryan Brotherhood.


Three of Fennell’s former police colleagues gave sworn accounts consistent with his jailhouse confession, including statements Fennell made at Stites’ funeral about her involvement with a Black man and deserving what she got.


Individuals unrelated to Reed also provided sworn statements detailing the rocky, violent nature

of Stites’ and Fennell’s relationship.


Reed’s eighth and ninth petitions to the U.S. Supreme Court were denied solely on the requirement that all

state appellate proceedings must be exhausted before the Supreme Court will review habeas petitions. Reed’s 10th petition was still pending before the Texas Court of Criminal Appeals.


Even though the denial was issued soundly and explicitly on procedural grounds (Reed had not exhausted state remedies so his case could not be considered at the federal level), Justice Sonia Sotomayor made her position on the merits of Reed’s claim clear when the Supreme Court initially refused to hear the case in 2020: “[i]n my view, there is no escaping the pall of uncertainty over Reed’s conviction,” but she remained hopeful that the Texas CCA would “not allow the most permanent of consequences to weigh on the Nation’s conscience while Reed’s conviction remains so mired in doubt.”


The CCA proved Sotomayor’s hopefulness to be misplaced. Reed’s tenth petition was denied in the state

courts after the state successfully argued it was untimely.


Again before the U.S. Supreme Court, Reed highlighted that Texas is fighting his current appeal—and fighting postponing his execution—based on legal timing, not the solid foundation of his conviction.


The Supreme Court agreed to hear the case, and oral arguments were held on October 11.


Texas argued that there were three different dates during the state proceedings that would’ve started the two-year clock running. Two of the three dates make Reed’s filing untimely. The U.S. Court of Appeals for the Fifth Circuit agreed with the earliest date Texas suggested, November 2014.


Reed argued that this can’t be the correct date because Texas courts reviewed the issue three more times after November 2014. At oral argument before the U. S. Supreme Court, the justices seemed to agree.


Justices Neil Gorsuch, Amy Coney Barrett, Elena Kagan, Ketanji Brown Jackson and Sotomayor all questioned the reasoning and inconsistency of the state’s position. Their statements ranged from calling the state’s suggested procedural process a “waste of time,” that it seemed designed “just to keep a prisoner from ultimately being able to bring a federal claim,” and is a position that Justice Coney Barrett “just [didn’t]

understand” in light of established appellate procedure.


Reed’s case highlights a far too frequent challenge in wrongful conviction practice—the intractability of

prosecutors.


Both cases illuminate the highly problematic nature of the system’s insistence on finality of convictions—even in the face of voluminous inculpatory evidence and with the relative ease of conducting additional DNA analysis.


Both cases are poised to offer a remedy for individual’s asserting due process claims. Given the enormity of impact, not just for Reed and Escobar individually, but for all actors in the criminal justice system, the Court’s rulings are anxiously awaited.

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