Judge’s conflicting orders roil Rodney Reed appeal

A judge has issued conflicting recommendations for resolving death row inmate Rodney Reed’s request for additional DNA testing, throwing into disarray an appeal that has already lasted two years and two months.

The latest legal fight began in July 2014, when Reed — on death row since 1998 — filed a request to conduct DNA testing on crime scene evidence that Bastrop County prosecutors opposed. Visiting Judge Doug Shaver rejected the request toward the end of 2014, and Reed appealed.

Last June, the Court of Criminal Appeals returned the case to Shaver to determine whether evidence from the 1996 killing of Stacey Stites was still available for testing, whether its chain of custody was preserved and whether the items were likely to contain DNA traces.

Shaver, a retired judge who was appointed to Reed’s case after the original judge stepped aside, ordered prosecutors and defense lawyers to draft proposed answers to the questions — a common practice — and both sides submitted a written list of findings and conclusions they hoped Shaver would adopt.

Problems arose when Shaver signed both sides’ proposals last week and forwarded them to the Court of Criminal Appeals, even though they came to opposite conclusions about the chain of custody and the likelihood that the items contain biological material to test.

“This is a new one. I’ve never quite seen anyone rule for both sides at the same time,” said Bryce Benjet, Reed’s lawyer. “Not only is he just affixing his name on the bottom, he didn’t even figure out whose side he was taking.”

Bastrop County District Attorney Bryan Goertz on Thursday asked the appeals court to return the matter to Shaver with an order to clarify his position within 14 days.

As it stands now, Goertz said, Shaver has agreed with defense lawyers who believe the chain of custody is intact, and with prosecutors who insist that some items Reed wants tested could have been cross-contaminated because they were handled without gloves during Reed’s trial and weren’t stored in separate packages after trial.

“Both cannot be right,” Goertz wrote.

Benjet said he intends to object to returning the case to Shaver, arguing that the Court of Criminal Appeals should be able to decide whether to grant the DNA testing based on a voluminous record that has been developed in hearings and briefs.

If the appeals court wants definitive answers from the court below, Benjet said he will ask that the case be assigned to another judge — one who will give proper consideration to a matter involving the death penalty.

“We’ve been waiting for a decision in this case for going on two years now,” he said. “Furthermore,whenyouhave an error of this magnitude, we think it’s appropriate for the court to reassign the case to a judge who can issue orders based on the record.”

Reed, now 48, was 10 days from execution when the Court of Criminal Appeals issued a delay in February 2015. Reed’s lawyers claimed that a new look at old forensic evidence would show that he did not kill Stites, a 19-year-old Giddings resident who was strangled 18 days before her wedding date. Her body was found along a rural road in Bastrop County.

Contact Chuck Lindell at 512-912-2569.

Twitter: @chucklindell