Amicus Curiae Brief — Rodney Reed, Petitioner v. Texas

No. 19-411

In the Supreme Court of the United States

__________________

RODNEY REED,

v.

TEXAS,

__________________

Petitioner,

Respondent.

On Petition for Writ of Certiorari to the

Court of Criminal Appeals of Texas

__________________

BRIEF OF DEKE PIERCE AND OTHER CURRENT

AND FORMER TEXAS LAW ENFORCEMENT

OFFICERS AS AMICI CURIAE IN SUPPORT OF

PETITIONER

__________________

LINDA C. GOLDSTEIN

Counsel of Record

DOUGLAS W. DUNHAM

DAVID S. WEINRAUB

DECHERT LLP

1095 Avenue of the Americas

New York, NY 10036

(212) 698-3500

linda.goldstein@dechert.com

THEODORE E. YALE

DECHERT LLP

2929 Arch Street

Philadelphia, PA 19104

(215) 994-2000

JOSEPH M. ABRAHAM

DECHERT LLP

300 West Sixth Street,

Suite 2010

Austin, TX 78701

(512) 394-3000

Counsel for Amici Curiae

October 28, 2019

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

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TABLE OF CONTENTS

PAGE

INTEREST OF AMICI ............................................... 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 4

I.

AMICI BELIEVE THAT WRONGFUL

EXECUTIONS UNDERMINE THE

RULE OF LAW ................................................ 4

A.

About The Amici.................................... 4

B.

Wrongful Convictions and the

Rule of Law............................................ 8

II.

AMICI BELIEVE THERE IS A MANIFEST NEED FOR HEIGHTENED RELIABILITY IN CAPITAL CASES ................... 9

III.

AMICI BELIEVE THAT SYSTEMIC

FACTORS CREATED A HIGH RISK

OF WRONGFUL CONVICTION IN

THIS CASE .................................................... 12

IV.

GRANTING MR. REED’S PETITION

WOULD NOT “OPEN THE FLOODGATES” TO MERITLESS HABEAS

CLAIMS ......................................................... 16

CONCLUSION ......................................................... 20

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Beck v. Alabama,

447 U.S. 625 (1980) .............................................. 11

Caldwell v. Mississippi,

472 U.S. 320 (1985) .............................................. 11

Ford v. Wainwright,

477 U.S. 399 (1986) (plurality

opinion) ................................................................... 9

Furman v. Georgia,

408 U.S. 238 (1972) (Stewart, J.,

concurring)........................................................ 2, 10

Gardner v. Florida,

430 U.S. 349 (1977) .......................................... 3, 11

House v. Bell,

547 U.S. 518 (2006) ............................ 16, 17, 18, 19

Kennedy v. Louisiana,

554 U.S. 407, as modified on denial

of reh’g, 554 U.S. 945 (2008) ................................ 10

Kuhlmann v. Wilson,

477 U.S. 436 (1986) .............................................. 17

Lankford v. Idaho,

500 U.S. 110 (1991) .............................................. 10

iii

Lockett v. Ohio,

438 U.S. 586 (1978) ...................................... 2, 3, 10

Sanders v. United States,

373 U.S. 1 (1963) .................................................. 17

Schlup v. Delo,

513 U.S. 298 (1995) .................................... 3, 17, 20

Strickland v. Washington,

466 U.S. 668 (1984) .............................................. 11

Wainwright v. Sykes,

433 U.S. 72 (1977) ................................................ 17

Whitmore v. Arkansas,

495 U.S. 149 (1990) (Marshall, J.,

dissenting) ............................................................ 11

Woodson v. North Carolina,

428 U.S. 280 (1976) (plurality

opinion) ............................................................. 2, 10

Zant v. Stephens,

462 U.S. 862 (1983) .............................................. 11

Other Authorities

Jon B. Gould, et al., Predicting

Erroneous Convictions: A Social

Science Approach to Miscarriages of

Justice ........................................................... passim

iv

Keith A. Findley & Michael S. Scott,

The Multiple Dimensions of Tunnel

Vision in Criminal Cases, 2006 Wis.

L. Rev. 291, 293 (2006)................................... 13, 14

Nat’l Res. Council, Strengthening

Forensic Science in the United

States: A Path Forward, at 185

(2009) .............................................................. 12, 13

Supreme Court Rule 37.2 ............................................ 1

Supreme Court Rule 37.6 ............................................ 1

1

INTEREST OF AMICI1

Amici are thirteen current and former Texas

law enforcement officers with over 250 years of combined experience.2 They include police officers with local sheriffs’ and constables’ offices, a police department chief, corrections officers, an evidence specialist,

and a major crimes detective.

Each of the amici cares deeply about the criminal justice system and the rule of law. While that often

means holding wrongdoers accountable, an equally

important goal of the justice system is to avoid punishing the innocent. “[I]nvestigations must inculpate

and exculpate.” (E-mail from Amicus William Evans.)

Wrongful convictions, and a fortiori wrongful executions, are not only unjust; they also undermine the legitimacy of our laws and the public trust therein. In

the words of one Amicus: “if all evidence is not re-

Pursuant to Supreme Court Rule 37.6, amici curiae

(“Amici”) affirm that no counsel for a party authored this brief in

whole or in part, and no person other than Amici and their counsel has made a monetary contribution to the preparation or submission of this brief. Pursuant to Supreme Court Rule 37.2, counsel of record for all parties received notice at least 10 days prior

to the due date of the intention of Amici to file this brief. All parties consented to the filing of the brief.

1

2 Amici submit this brief only in their capacities as private citizens. To the extent an Amicus’s employer is named, it is

solely for descriptive purposes and does not constitute the employer’s endorsement of the brief or any portion of its content.

2

viewed and/or tested, and the wrong person is executed[,] it … tarnishes the image of [the] System

whose laws [we] swore to uphold.” (E-mail from Amicus Jessie Tippie (typo corrected).)

Many of the Amici do not oppose the imposition

of the death penalty in appropriate cases. But all agree

with this Court’s longstanding view that the “qualitative difference between death and other penalties calls

for a greater degree of reliability when the death sentence is imposed.” Lockett v. Ohio, 438 U.S. 586, 604

(1978).

Amici also believe that for the reasons explained in Petitioner’s brief, such reliability is lacking

in this case. There are serious “questions as to

whether all pertinent and critical evidence was introduced during Mr. Reed’s trial.” (E-mail from Amicus

Manuel Mancias (typo corrected).) Justice requires

that “the evidence of this case in particular needs to

be reheard before a man is executed.” (E-mail from

Amicus Jordan Murray.) Failing to do so would be a

“travesty” of justice. (E-mail from Amicus Mike

McGann.)

SUMMARY OF ARGUMENT

Death—the harshest sentence meted out by any

judicial system—is both uniquely severe and uniquely

irrevocable. Furman v. Georgia, 408 U.S. 238, 306

(1972) (Stewart, J., concurring); accord, e.g., Woodson

3

v. North Carolina, 428 U.S. 280, 305 (1976) (plurality

opinion). For those reasons, this Court has insisted

time and time again that capital trials meet a heightened level of reliability. E.g., Lockett v. Ohio, 438 U.S.

586, 604, (1978); Gardner v. Florida, 430 U.S. 349, 359

(1977).

Mr. Reed’s conviction lacks that necessary reliability. The record in this case, including significant

new evidence potentially exonerating Mr. Reed and

implicating a different suspect, raises serious doubts

about Mr. Reed’s guilt. For that reason, Amici respectfully urge the Court to ensure that Mr. Reed’s case

gets a thorough second look before he is executed.

This brief is intended to explain why, from a law

enforcement perspective, such review is critical on the

facts of this case. First, the criminal justice system has

a strong interest not only in punishing the guilty but

also in not punishing the innocent. Executing an innocent person is “[t]he quintessential miscarriage of justice.” Schlup v. Delo, 513 U.S. 298, 324-25 (1995). Not

only would doing so be cruel and immoral, it would

also undermine the rule of law and the legitimacy of

the very system Amici have sworn to uphold.

Second, Amici know that under the wrong conditions even good investigators and prosecutors can

make mistakes. A case that is objectively weak can appear much stronger to those in the middle of it. As law

4

enforcement officers, Amici are familiar with the phenomena of forensic error, weak facts, tunnel vision,

and community pressure that can distort an investigation. There is a significant, atypical risk that these

factors tainted the outcome of Mr. Reed’s trial.

Third, this brief explains from Amici’s perspective why the evidence of Mr. Reed’s innocence—and

Mr. Fennell’s guilt—is so uniquely compelling that

granting Mr. Reed’s Petition, and reversing the judgment below, would not open the floodgates to meritless

appeals and habeas petitions. Amici understand as

well as anyone the need for finality in criminal cases.

But where, as here, there is a significant risk of executing an innocent man, that need for finality must

yield to the needs of justice.

ARGUMENT

I.

AMICI BELIEVE THAT WRONGFUL EXECUTIONS UNDERMINE THE RULE OF LAW

A. About The Amici

Lead Amicus Deke Pierce is a sixth-generation

Texan and has been a Texas Peace Officer since

1992—including since 1994 in Central Texas, near

where the Reed investigation took place. Mr. Pierce

currently serves as Deputy Constable for Williamson

County Precinct 1 Constable’s Office, a position he has

held since 2017. For 22 years prior, Mr. Pierce served

as a Deputy Sheriff and Traffic Investigator for the

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Travis County Sheriff’s Office. Mr. Pierce is also a veteran of the U.S. Air Force, serving as an Avionics System Specialist at Moody Air Force Base in Valdosta,

Georgia.

Mr. Pierce holds a Texas Master Peace Officer’s

certification, based on over 3000 hours of training, and

has received the Academic Recognition Award from

the Texas Commission on Law Enforcement. Mr.

Pierce is or has been a member of the Sheriff’s Association of Texas, Texas Municipal Police Association,

Texas Search and Rescue Board and Advisory Board,

Association of Certified Fraud Examiners, and Williamson County Deputies Association. He has also

been a law enforcement shift commander and volunteer for Rodeo Austin, director of the Sheriff's Memorial & Benevolent Society of Travis County, and a

member of American Legion Kerlin/Lyerly Post 154.

Mr. Pierce’s interest in Mr. Reed’s case stems

from his 2015 introduction to Anthony Graves, who

was wrongfully convicted of murdering six people in

Somerville, Texas, in 1992, only to be released in 2010

after 18 years of incarceration. Through his association with Mr. Graves, Mr. Pierce ultimately met Mr.

Reed’s mother Sandra and brother Rodrick, who introduced Mr. Pierce to the facts of Mr. Reed’s arrest and

conviction. Mr. Pierce’s subsequent investigations into

Mr. Reed’s case—including Mr. Pierce’s ongoing conversations with other current and former Texas peace

officers (see below)—have led Mr. Pierce to the inescapable conclusion that justice would not be done were

Mr. Reed to be executed based on the current record.

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The other current and former Texas law enforcement officers who stand with Mr. Pierce in seeking to ensure that Mr. Reed’s case receives the thorough review it deserves are:



Tip Birdwell: Mr. Birdwell served in Texas law

enforcement from 1978 to 2018, including positions with Travis County Sheriff’s Office, Travis

County Constable’s Office Precinct 4, Austin

Park Rangers, and Austin Independent School

District. Mr. Birdwell is also a veteran of the

U.S. Marine Corps.3



Rodney Blackmon: Mr. Blackmon began his service with the Travis County Sheriff’s Office in

1989, working in both corrections and law enforcement. Mr. Blackmon has received Masterlevel certifications with respect to both disciplines.



William Evans: Mr. Evans served for 17 years

with the Travis County Sheriff’s Office after

previously serving for three years as a civilian

volunteer with the office.



Manuel Mancias: Mr. Mancias served for 19

years in the Travis County Sheriff’s Office, retiring at the rank of Sergeant. He spent five

years as a Detective and Supervisor of the Major Crimes unit.

3 Mr. Birdwell joins this brief in his capacity as a former

law enforcement officer, not in his current capacity as a Municipal Court Associate Justice.

7



Pete Mateo: Mr. Mateo served for 27 years with

the Travis County Sheriff’s Office, mostly as a

patrol officer, and has also worked in corrections. Mr. Mateo is a certified Master Peace Officer and has also received a Master-level certification in corrections.



Mike McCann: Mr. McCann served 27 years in

public safety roles, including 18 years of service

with the Cedar Park Police Department. He

was a patrol supervisor at that department

when he retired in 2016.



Jordan Murray: Mr. Murray has been a Reserve

Officer with the Smithville, Texas police department since 2012.



Robert Phillips: Mr. Phillips has been a Texas

law enforcement and corrections officer for over

23 years, and currently serves in commercial

vehicle enforcement with the Travis County

Sheriff’s Office. He is a certified Master Peace

Officer and holds an advanced certification in

corrections.



Shane Sexton: Mr. Sexton currently serves as

Chief of Police for the Concordia University

Texas Police Department, and is a Board Member for the Texas Association of College and

University Police Administrators. He has

served in law enforcement since 2000. Mr. Sexton is a certified Master Peace Officer, an Adjunct Instructor for the Austin Police Academy

8

and the UT System Police Academy, and previously served as a Texas Commission on Law

Enforcement Instructor.



Samuel Strauss: Mr. Strauss has served as a

Reserve Deputy and Reserve Deputy Constable

with the Travis County Sheriff’s Office, Williamson County Sheriff’s Office, and Williamson County Precinct 1 Constable’s Office.



Jessie “Jess” Tippie: Mr. Tippie retired in 2018

with over thirty years of experience as a Texas

law enforcement officer. He spent ten years

with the Bastrop County Sheriff’s Office, including six as a criminal investigator. He also

served thirteen years with the Travis County

Sheriff’s Office.



Jay Whitney: Mr. Whitney served for 34 years

in the Grayson County Sheriff’s Office, including 15 years’ experience in narcotics and criminal investigations that involved six homicide investigations. Mr. Whitney has investigated several cold cases, where he has seen first-hand the

consequences of investigative biases.

B. Wrongful Convictions and the Rule of Law

Amici have a broad range of experience in law

enforcement but share a common belief that only the

guilty should suffer punishment, especially when capital punishment is involved. To be sure, law enforcement should ensure community safety. But the need

9

to treat the people of the community with dignity and

respect, and to meet with and listen to community

members about their needs and concerns, is just as important. Allowing Mr. Reed to be executed while significant questions exist about the accuracy of his conviction would serve neither of these goals.

Indeed, it benefits both the law enforcement

community and the public when convictions and executions are both actually reliable, and generally perceived to be reliable. The existence and perception of

wrongful convictions undermine the public’s trust in

law enforcement. This in turn may discourage members of the community from cooperating with law enforcement, thus making it even harder for law enforcement personnel to perform what is already a difficult

job. And of course, wrongful convictions are directly

antithetical to law enforcement officers’ foremost

sworn duty: to uphold the law.

II.

AMICI BELIEVE THERE IS A MANIFEST

NEED FOR HEIGHTENED RELIABILITY IN

CAPITAL CASES

Capital cases require heightened reliability because, as this Court has consistently

recognized, “death is different.” E.g., Ford v.

Wainwright, 477 U.S. 399, 411 (1986) (plurality

opinion).

10

The penalty of death differs from all other

forms of criminal punishment, not in degree

but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of

criminal justice. And it is unique, finally, in

its absolute renunciation of all that is embodied in our concept of humanity.

Furman v. Georgia, 408 U.S. 238, 306 (1972) (Stewart,

J., concurring); accord, e.g., Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion)

(“[T]he penalty of death is qualitatively different from

a sentence of imprisonment, however long. Death, in

its finality, differs more from life imprisonment than

a 100-year prison term differs from one of only a year

or two.”).

For decades, it has been a cornerstone of this

Court’s death penalty jurisprudence that “this qualitative difference between death and other penalties

calls for a greater degree of reliability when the death

sentence is imposed.” Lockett, 438 U.S. at 604; accord,

e.g., Kennedy v. Louisiana, 554 U.S. 407, 443-44 (prohibiting death penalty for non-fatal child rape in part

because of risks of “unreliable … child testimony”), as

modified on denial of reh’g, 554 U.S. 945 (2008) ; Lankford v. Idaho, 500 U.S. 110, 125-26 (1991) (reversing

conviction because judge’s failure to give notice that

he was considering death penalty undermined relia-

11

bility of the adversarial process); Whitmore v. Arkansas, 495 U.S. 149, 167 (1990) (Marshall, J., dissenting)

(“It is by now axiomatic … that the unique, irrevocable

nature of the death penalty necessitates safeguards

not required for other punishments.”); Caldwell v.

Mississippi, 472 U.S. 320, 330 (1985) (holding that

death sentence is not constitutionally reliable if the

jury is misled as to its “awesome responsibility” in sentencing); Strickland v. Washington, 466 U.S. 668, 688

(1984) (recognizing that ineffective assistance of counsel can threaten reliability by undermining the adversarial process); Zant v. Stephens, 462 U.S. 862, 884-85

(1983) (“[B]ecause there is a qualitative difference between death and any other permissible form of punishment, there is a corresponding difference in the

need for reliability in the determination that death is

the appropriate punishment in a specific case.” (internal quotation marks and citation omitted)); Gardner

v. Florida, 430 U.S. 349, 359 (1977) (holding that

heightened need for reliability outweighs state’s interest in keeping presentencing report secret).

This principle applies whether the question is

one of “reliability of the sentencing” or, as here, “reliability of the guilt determination.” Beck v. Alabama,

447 U.S. 625, 638 (1980). The bottom line is that “the

severity of the sentence mandates careful scrutiny in

the review of any colorable claim of error.” Stephens,

462 U.S. at 884-85.

12

III.

AMICI BELIEVE THAT SYSTEMIC FACTORS CREATED A HIGH RISK OF WRONGFUL CONVICTION IN THIS CASE

Despite this need for heightened reliability in

capital cases, the record now shows that Mr. Reed’s

conviction was anything but reliable. Emerging

criminology and social science research demonstrates

that wrongful convictions predictably result from

numerous factors present in this case, including

forensic error, weak facts, tunnel vision, and

community pressure.

In 2009, the National Research Council

identified “a critical need in most fields of forensic

science to raise the standards for reporting and

testifying about the results of investigations.” Nat’l

Res. Council, Strengthening Forensic Science in the

United States: A Path Forward, at 185 (2009).

Forensic error often arises from the skewed

interpretation of test results by expert witnesses at

trial. For example, forensic error can include

“overstating the inculpatory nature of the evidence by

providing inaccurate or non-existent statistics” and

“misstating the certainty of the results.” Jon B. Gould,

et al., Predicting Erroneous Convictions: A Social

Science Approach to Miscarriages of Justice, at xix-xx

(2012). For this reason, criminal justice professionals

increasingly recognize that “[f]orensic science reports,

and any courtroom testimony stemming from them,

must include clear characterizations of the limitations

13

of the analyses, including associated probabilities

where possible.” Nat’l Res. Council, supra, at 186.

But that salutary acknowledgment of the limits

of forensic science did not occur at Mr. Reed’s trial.

Instead, the State’s forensic experts testified

categorically—and incorrectly—that sperm can

remain intact for no more than 24 or 26 hours after

intercourse. (App. 91a-93a, 103a-104a, 306a-309a.)

Studies show that forensic experts are particularly

prone to overstating the probative value of their test

results where, as here, there is scant evidence linking

a defendant to a crime. “Forensic scientists, aware of

the desired result of their analyses, might be

influenced—even unwittingly—to interpret ambiguous data … to support the police theory.” Keith A.

Findley & Michael S. Scott, The Multiple Dimensions

of Tunnel Vision in Criminal Cases, 2006 Wis. L. Rev.

291, 293 (2006); see also Gould et al., supra, at xix

(noting that “weak facts may encourage prosecutors to

engage in certain behaviors designed to bolster the

case, which our statistics show help predict an

erroneous conviction”). Here, the State’s forensic

experts would have understood that the State’s case

depended almost entirely on their testimony. Amici

believe that the “weak facts” linking Mr. Reed to Ms.

Stites’s murder invited the forensic experts to make

the fundamental forensic errors that now taint Mr.

Reed’s conviction.

14

As current and former law enforcement officers,

Amici also recognize the problem of tunnel vision, to

which all law enforcement officers are susceptible, and

which “can occur at any point in the criminal justice

process.” Gould, et al., supra, at xxi. Tunnel vision

refers to the “‘compendium of common heuristics and

logical fallacies,’ … that lead actors in the criminal

justice system to ‘focus on a suspect, select and filter

the evidence that will “build a case” for conviction,

while ignoring or suppressing evidence that points

away from guilt.’” Findley & Scott, supra, at 292

(citations omitted). This phenomenon does not depend

on any bad faith or incompetence of the officers

involved. Rather, it is a result of ordinary cognitive

bias, that can make even experienced, wellintentioned officers fixate on a theory of the case that,

from an objective perspective, does not hold up.

Amici believe that tunnel vision also tainted the

investigation of Ms. Stites’s murder. In particular, the

pre-trial investigation shows that police did not

believe the forensic evidence exonerated Mr. Fennell

until after Mr. Reed became a suspect. Only after Mr.

Reed was identified as the source of an intimate

sample did police consider the forensic evidence

dispositive of guilt.

Shortly after Ms. Stites was murdered in April

1996, vaginal swabs obtained at the crime scene and

during a subsequent autopsy revealed a small number

of intact spermatozoa. (App. 92a-93a.) These sperm

15

cells were not linked to Mr. Reed until a year later, in

early 1997. (App. 102a.) In the interim, investigators

spent months considering Mr. Fennell as a suspect,

subjecting him to aggressive interrogations and

polygraph tests which led him to invoke his Fifth

Amendment privilege against self-incrimination. Mr.

Fennell was actively pursued as a suspect “even

though DNA testing excluded him as the donor of the

semen.” (App. 99a.) So long as Mr. Fennell was their

primary suspect, investigators did not regard

unidentified sperm in the victim’s body as evidence

that Mr. Fennell had not committed the murder. Only

after the sperm had been linked to a specific person—

Mr. Reed—did the State adopt the theory that the

person who deposited the sperm must also have

committed the murder. At that point, Amici believe

that tunnel vision set in and investigators allowed

themselves to forget what they had previously known:

that another person’s sperm did not necessarily

exculpate Mr. Fennell. Investigators abruptly shifted

focus to Mr. Reed and never looked back. This fixation

on Mr. Reed despite such weak evidence raises Amici’s

concerns that he was, as one Amicus has phrased it,

“railroad[ed].” (E-mail from Amicus Rodney

Blackmon.)

Finally, Amici believe that Mr. Reed’s conviction

was tainted by “community pressure,” which “may

encourage overly swift resolutions to cases involving

serious crimes like rape and murder.” Gould, et al.,

supra, at xviii-xix. Community pressure helps explain

16

how well-meaning investigators, prosecutors, and

scientific experts may unwittingly succumb to tunnel

vision, fixate on a suspect despite limited evidence

against him, and exaggerate the import of ambiguous

forensic evidence to compensate for fundamental

weaknesses in the State’s proof. In a high-profile

murder case, these factors can become mutually selfreinforcing, “dismantl[ing] the rigorous testing of

evidence that makes the investigative and adversarial

processes function effectively.” Id. at xxi. “[O]verall,

the erroneously convicted are truly cases of systemic

failure.” Id. (emphasis in original).

IV.

GRANTING MR. REED’S PETITION WOULD

NOT “OPEN THE FLOODGATES” TO MERITLESS HABEAS CLAIMS

Amici submit that Mr. Reed’s case presents two

exceptional factors that warrant additional review:

the complete undermining of the forensic case against

him and the strong evidence pointing to Mr. Fennell

as the real killer. These factors are not present in most

cases, so granting relief in this case would not mean

opening the door to thousands of other appeals and

collateral attacks.

Moreover, granting relief in this case would be

consistent with the Court’s traditional use of innocence—or a significant possibility of innocence—as a

“safety valve” in capital cases. Indeed, Amici note that

this case is factually quite similar to House v. Bell, 547

17

U.S. 518 (2006), where this Court allowed the petitioner (Mr. House) to bring defaulted habeas claims

because there was significant evidence of actual innocence. (Mr. House was subsequently exonerated and

freed.)

As current and former law enforcement officials, Amici believe as much as anyone in the need for

finality in criminal prosecutions. Meritless appeals

and collateral attacks can waste resources and deny

closure to victims and their families. Evidence and

witness testimony are often more reliable when they

are fresh. Thus, the trial is supposed to be the “main

event.” Wainwright v. Sykes, 433 U.S. 72, 90 (1977).

But these considerations do not outweigh the enormity

of potentially executing an innocent person, which,

this Court has recognized, is “[t]he quintessential miscarriage of justice.” Schlup v. Delo, 513 U.S. 298, 32425 (1995). Expedience cannot become a substitute for

justice. For that reason, the Court has long allowed

habeas claims that would otherwise be barred to avoid

a miscarriage of justice. E.g., House, 547 U.S. at 555;

Sanders v. United States, 373 U.S. 1, 16 (1963).4

4 This principle is so important, in fact, that the Court

has continued to apply the “ends of justice” exception even though

it is not expressly stated in the applicable statutes. See House,

547 U.S. at 539 (reading limitations of the Antiterrorism and Effective Death Penalty Act as inapplicable to litigation of “defaulted claims based on a showing of actual innocence”);

Kuhlmann v. Wilson, 477 U.S. 436, 451 (1986) (similar).

18

Mr. Reed’s case is strikingly similar to House v.

Bell. In House, this Court found that the defendant

had made a sufficient “gateway” showing of potential

innocence to allow him to seek habeas review of procedurally defaulted constitutional claims. 547 U.S. at

555. The Court based this holding on two factors,

which are also present here: the complete undermining of the forensic case against the petitioner and a

compelling alternative suspect.

First, the forensic evidence against Mr. House

was completely undermined. DNA testing showed that

semen found on the victim, “the only forensic evidence

at the scene that would link Mr. House to the murder,”

did not match Mr. House. Id. at 540-41. Expert testimony also showed that blood on Mr. House’s pants

most likely came from cross-contamination by the police. Id. at 541-44. This case is similar. The scientific

basis for Mr. Reed’s conviction has completely eroded

as the State’s three forensic experts (or their colleagues and successors) have acknowledged significant flaws in the scientific opinions presented against

Mr. Reed at trial. (App. 228a-229a, 233a, 277a.) These

developments raise profound concerns because forensic evidence was the cornerstone of the State’s case.

With the validity of that evidence now in serious

doubt, the overall weakness of the case against Mr.

Reed appears striking and unmistakable. Most notably, no physical evidence links Mr. Reed to either of

the two crime scenes. And new evidence and witnesses

19

support Mr. Reed’s claim that he had a consensual sexual relationship with Ms. Stites (App. 422a-434a).

Second, Mr. House presented new “troubling evidence” showing that someone else—the victim’s husband—“could have been the murderer.” 547 U.S. at

548. This evidence included testimony that the victim’s husband had been physically abusive, id. at 54849, tried to fabricate an alibi, id. at 549, and lied to

police about his whereabouts on the night of the murder. Id. at 551. In this case, Mr. Reed has presented

similar new evidence that implicates Ms. Stites’s fiancé, Mr. Fennell, as a strong suspect in her murder.

(App. 344a). Evidence, including a rape conviction,

demonstrates Mr. Fennell’s history of violence towards women. (Pet. 10; App. 182a-83a.) A witness

heard Mr. Fennell say that he would strangle his girlfriend with a belt if he ever caught her cheating. (App.

117a.) Mr. Fennell told inconsistent stories about his

whereabouts on the night of the murder. (See Pet. 1113.) And his own testimony puts him with Ms. Stites

at the time she was killed. (See Pet. 10). In Amici’s

view, Mr. Reed’s conviction cannot be considered reliable without ruling out the substantial chance that

Mr. Fennell was Ms. Stites’s real killer.

These two factors, so persuasive in House, are

both extreme and uncommon. As this Court has noted,

“[c]laims of actual innocence pose less of a threat to

scarce judicial resources and to principles of finality

and comity” than do other kinds of collateral attack, in

20

large part because “experience has taught us that a

substantial claim that constitutional error has caused

the conviction of an innocent person is extremely

rare.” Schlup, 513 U.S. at 324.

These factors are also relatively objective. This

is not a case where the weight of the evidence has

merely shifted; rather, the forensic case against Mr.

Reed has been completely obliterated. Similarly, the

new evidence showing Mr. Fennell’s predilection for

violence against women and his means, motive, and

opportunity to murder Ms. Stites go far beyond a whiff

of possibility. Thus, opening the courthouse doors to

Mr. Reed’s claims would not open a floodgate of meritless habeas suits.

CONCLUSION

For all of the foregoing reasons, Amici urge the

Court to grant the Petition for Certiorari and reverse

the decision below.

21

Respectfully submitted,

LINDA C. GOLDSTEIN

Counsel of Record

DOUGLAS W. DUNHAM

DAVID S. WEINRAUB

DECHERT LLP

1095 Avenue of the

Americas

New York, NY 10036

(212) 698-3500

Linda.Goldstein@dechert.com

THEODORE E. YALE

DECHERT LLP

2929 Arch Street

Philadelphia, PA 19104

(215) 994-2000

JOSEPH M. ABRAHAM

DECHERT LLP

300 West Sixth Street,

Suite 2010

Austin, TX 78701

(512) 394-3000

Counsel for Amici Curiae

OCTOBER 28, 2019