Two more innocent men facing death in Texas

THE STATE of Texas maintains the most active execution chamber in the nation, amid questionable practices and a host of controversial executions.

Texas has executed seven people already this year as of May 2014. The state has put at least 515 people to death since executions were reinstated in 1982, far more than any other state.

Over the last 15 years, there have been scandals at DNA labs, and revelations of judges and lawyers sleeping through portions of capital cases. Meanwhile, clear evidence of racial bias in sentencing, a lack of funding for indigent defendants and an assembly line approach to executions continue to plague the Texas system.

Despite this, the courts here are known to rubber-stamp death penalty convictions with little scrutiny. The worst offender is the Texas Court of Criminal Appeals, the highest criminal court in Texas.

The many problems in the application of the death penalty in Texas have undoubtedly led to the execution of innocent people. While a only a few people have won exoneration off Texas death row over the years--Clarence Brandley, Randall Adams and most recently, Anthony Graves--many more of those executed are believed to have been innocent.

The most prominent example is the case of Cameron Todd Willingham, who was executed in 2004 for allegedly starting a house fire that resulted in the death of his three children. However, a forensic review using updated fire-science investigation methods has revealed that there likely was no arson, and that the fire was accidental. This evidence was available before Willingham's execution, yet Texas authorities chose to ignore it.

More recently, the New York-based Innocence Project has been working to win a posthumous exoneration for Willingham. Lawyers there uncovered new evidence of a deal for a reduction in charges for a jailhouse informant who fingered Willingham. In April of this year, the Texas Board of Pardons and Paroles once again denied the request for a pardon for Willingham.

There are several death row prisoners currently facing execution in Texas with strong cases for innocence, including the cases of Rodney Reed and Louis Castro Perez.

The case of Louis Castro Perez--who, like Rodney Reed, is from central Texas--has taken a path like Rodney's case. Louis was sentenced to death in 1999, convicted of the murders of his friends Michelle Fulwiler and Cynda Barz, and Barz's 9-year-old daughter Staci Mitchell.

However, over the years, Perez's family, and especially his sister Delia Perez Myer, have fought to get evidence of his innocence heard by the courts, including authorizing extensive testing to be done on foreign DNA samples from several items left at the crime scene.

Perez was convicted based on the presence of his DNA and fingerprints at the crime scene. As both the prosecution and defense acknowledged, Perez had been a guest in the home over the preceding days. According to him, he left that morning to meet a friend, and when he returned later, he encountered a badly beaten, yet still alive Cynda Barz at the front door. He kneeled down to help her, asking what had happened. When he tried to pick her up, she scratched him. He panicked and put her back down, leaving a palm print next to her body. Perez then fled the scene.

As Delia Perez Myer told reporter Rebekah Skelton in 2012, Perez fled because of an arrest warrant he had for evading child support, "My first blame is that my brother didn't dial 911. He didn't want to get involved, and he just walked out the door."

However, Perez Myer also pointed out that Perez may have fled the scene of a crime in progress, "We believe the actual murderer was still in the home, because when Louis left, someone dead bolted the door behind him," she said.

When Perez learned that he was a suspect in the murder, he went down to the police station himself--he was certain that the evidence would show that he was not responsible for the crime.

Regarding the DNA evidence, there was unknown DNA identified on a rag wrapped around a knife at the scene of the crime, as well as on a towel near one of the victims. Crime scene investigators admitted under oath that the Austin Police Department sent this material to the Department of Public Safety (DPS) and asked them to only look for Perez's DNA.

In addition, Crime Scene Specialist Michelle Thompson testified at trial that three possible murder weapons were found at the scene of the crime: a Comal (a flat cooking griddle), a telephone cord, and a pair of pantyhose. None of these items held any evidence of Perez's DNA or fingerprints.

More recently, new laws in Texas have made access to DNA testing by prisoners much easier, and that may lead to a breakthrough in the case. More DNA evidence has been discovered and other evidence that hasn't been tested before has been made available to the defense.

Delia Perez Myer told the New Abolitionist, "It wasn't until recently that our new attorneys and the Innocence Project based in New York were able to secure permission from the Western District of the Federal Courts to allow further DNA testing." While results of that testing are not yet available to the public, it's hoped that they may bolster Perez's claim of innocence.

Perez Myer pointed out further issues in the conviction of her brother: "It is clear and evident that there were many errors in his case, including prosecutorial misconduct, withholding of exculpatory evidence, serious issues with the Travis County Medical Examiners not having their licensing in order and retracting statements made during our investigations; problems at the DNA Labs at the Texas Department of Public Safety--and, of course, the more than 40 fingerprints found at the crime scene that didn't match Louis."

Also, like the Rodney Reed case, the 5th U.S. Circuit Court of Appeals has recently released an opinion denying relief to Louis Castro Perez.

His latest appeal was based on an issue of ineffective assistance of counsel. The 5th U.S. Circuit had previously rendered a judgment denying Perez relief. His lawyer then had 30 days to respond. However, she failed to respond to a 30-day deadline for filing a new motion with the district court. In fact, this attorney received notification of the deadline and, without alerting Louis or the other consulting attorney on the case, decided on her own not to respond to the motion, effectively abandoning her client.

In March 2012, after being made aware of the error, the court granted a motion to allow Perez to reenter the appeal that his lawyer should have made. However, in March of this year, the 5th U.S. Circuit vacated that order and decided to let the original judgment of denial of relief stand. Unless the 5th U.S. Circuit reconsiders that decision, Perez's case will go on the U.S. Supreme Court.

As Perez Myer says of her brother's case, "It is imperative that we move forward with our innocence claim and find the true perpetrator in this triple homicide from September 1998 where Louis' friends Michelle Cynda, and Stacey were so heinously murdered. We must ensure that no other family go through what we have been through, having a wrongfully convicted loved one sent to our torturous death row here in Texas."

Over the next few months, activists in Austin, alongside Perez Myer, will be working to put together a screening of a new movie, The Road to Livingston, which documents her visits to her brother on death row and their relationship over the long years he has spent on death row.

Perez Myer continues to speak around the country and the world about her brother's case, and to fight against the death penalty for everyone.

On December 4, 2013, about a dozen family members and supporters of Texas death row prisoner Rodney Reed stood in front of the Texas State Capitol, holding signs and surrounded by every local media outlet in Austin.

That same day, down in New Orleans, Reed's lawyers were presenting oral arguments to the 5th U.S. Circuit Court of Appeals. Rodney's case had been denied an appeal by the highest criminal court in Texas and was being heard for the first time by judges of the 5th Circuit. Because oral arguments are rarely granted in federal district courts, hopes were high among Reed's family and supporters.

Reed's mother Sandra spoke to the assembled reporters: "Knowing the evidence, knowing the truth keeps us strong," she said.

For years, Rodney's family, legal team, and activists have fought to get the evidence of that truth heard by the courts: Rodney Reed is innocent on death row.

Rodney Reed has been on death row for 17 years, convicted of the 1996 rape and murder of Stacey Stites in Bastrop, Texas. Although the state claims Reed did not know Stacey, many witnesses attested to an ongoing affair between Reed and Stites, lasting over the course of months. Stites became engaged to Jimmy Fennell Jr., a police officer in the nearby town of Giddings, during this time.

On April 23, 1996, the truck that Stites and Fennell shared was found abandoned at Bastrop High School in the early morning hours, and her body was found dumped on a lonely stretch of country road later that afternoon. She had been strangled, and the remains of a belt were found next to her body. The subsequent autopsy revealed a small amount of semen, although there was no clear evidence of bruising consistent with rape.

One year later, Rodney was charged with Stites' murder. He was convicted on the basis of a single piece of forensic evidence--semen DNA. Reed admitted to being with Stites over a day before her murder, which explained the presence of his DNA.

At trial, the state argued that the semen was deposited just before the time of Stites's death, in order to bolster the rape and murder charges. Reed's defense has consistently argued that the semen found was much older than the state claimed.

In 2012, the former medical examiner who testified for the prosecution refuted the claim he made at trial that the semen had to be less than 24 hours old. In an affidavit for Reed's defense, Robert Bayardo says that his forensics findings were "misconstrued" by the prosecution, saying that "My estimate of time of death...should not have been used at trial as an accurate statement of when...Stites died."

Another medical examiner, Lloyd White examined the evidence in the case for the Austin Chronicle back in 2002. Speaking to the state's contention at trial about when the sperm was deposited he said, "There have been documented cases where you can recognize the spermatozoa in bodies that have been dead for days."

No other physical evidence connects Reed to this crime. Meanwhile, a pattern of other evidence links Stites' fiancé and former police officer Jimmy Fennell, Jr., to the crime. He was one of the first suspects in the murder, and failed two lie detector tests when asked if he had strangled Stites. DNA found on beer cans at the crime scene have been linked to two police officers--evidence available at trial, which the prosecution failed to give to the defense.

At new hearings for Reed in 2006, one witness testified to seeing Stites and Fennell in the early morning hours of the day of her murder. Another witness testified while at the police academy together, she had overheard Fennell say that he would strangle his girlfriend with a belt if he found her cheating on him--which is how Stites died.

Despite the fact that the state claimed Stites was killed in the truck owned by her and Fennell, none of Reed's fingerprints were found in the truck--only Stites and Fennell's fingerprints were present. There was evidence of body fluid between the passenger and driver seat. Before the defense could have access to the truck or request further testing of any of this forensic evidence, the truck was returned to Fennell and he sold it within days of the murder.

Fennell is currently serving time, after being convicted of kidnapping and sexually assaulting a woman he detained while policing in Georgetown, Texas.

All of this and more was presented in Reed's recent appeal to the 5th U.S. Circuit Court. However, on January 15 of this year, the court upheld the lower court's decision to deny the appeal. The federal courts dismissed Bayardo's new affidavit regarding the semen DNA , saying that even substantively considered, Dr. Bayardo's affidavit would have "little probative value."

The 5th U.S. Circuit time and time again dismisses various witnesses for Reed as "not credible," including witnesses who testified to the affair between Reed and Stites, and witnesses who linked Fennell to Stites's murder.

The decision by the court was shocking to Reed's family, as his mother Sandra said:

simply because all of the truth has been denied over the past 17 years. The truth has been on the table pointing to someone else, the DNA on the beer cans implicating two police officers in the very beginning of this case, which was suppressed at trial. Rodney had an alibi witness. The state said he didn't, but he did--and the reason why they could say that is because the judge Towslee denied the alibi witness to testify. Nothing led to Rodney's conviction except the so-called DNA, and we know now that it was old.

Despite a mountain of evidence of Reed's innocence, the courts continue to fall back on procedural bars to the admission of this evidence. That is why Reed's family and supporters continue to try to build public awareness and outcry against any execution for Rodney.

The threat of execution and the constant denial by the courts have taken a toll on Rodney and his family. "Until a person is in our place, you can't really describe it," Sandra said. "It's a hard pill to swallow--the corruption and injustice that's dwelling in my son's case." Despite this, Sandra said that "Rodney's handling things very well--he's remaining strong for himself. The truth keeps us all strong, and believing that justice will prevail."

On February 14 this year, his family and supporters were out in the streets again--this time picketing the Bastrop County Courthouse, asking the district attorney to drop the charges against Rodney or grant him a new trial.

"The best way to go right now is to get the petitions to Bryan Goertz, the district attorney, and rallying here in Bastrop," said Rodrick Reed, Rodney's brother and his active supporter, "Right now, it's in his hands, so I think the best thing to do is make noise here in Bastrop." Activists have plans to go back with our petition for Reed--over 10,000 people have signed an online version demanding a new trial.

Rodney's case is now heading to the U.S. Supreme Court, but despite this, the state of Texas has already attempted to have an execution date set. While one hasn't been set yet, the urgency of the situation could not be more dire.

These are just two of the cases in which death penalty abolitionists in Texas are fighting to win a hearing.

There are also the many cases of prisoners sentenced to death under the unjust Texas "Law of Parties," where a person can be sentenced to death, even though they did not kill anyone. Jeff Wood was convicted under this unjust law and has been on Texas death row for the past 16 years.

There are cases like those of Hank Skinner, who has fought for years to get further DNA testing of several pieces of evidence from the crime scene, only to be told that that some crucial evidence has been lost or misplaced.

As Delia Perez Myer puts it, "I am certain that we have executed innocent men and women in Texas, from Carlos de Luna to Todd Cameron Willingham and many others. It would be naïve of me to think that Louis is the first person who has ever been innocent on death row."

When asked the most important thing for abolitionists to do right now, Sandra Reed responded, "We have to be steady and put the fight to end the death penalty in the spotlight, because there's too many people going through what we are. There's many other mothers out there who are in my shoes, and we need to find them, to help them."

The family of both Reed and Perez, alongside activists in Texas, have vowed to protest in every way possible any execution dates. Abolitionists here and around the world will continue to expose the injustices of the Texas death penalty and demand that the courts and the state of Texas acknowledge that evidence matters.

Lawmakers should not turn a blind eye to the innocence of death row prisoners in Texas. While the mistake of Cameron Todd Willingham cannot be undone, it can in the case of Rodney Reed and of Louis Castro Perez.