Broader Problems Remain After Justices' DNA Test Ruling

By Brandon Garrett | April 21, 2023, 4:39 PM EDT ·

Brandon Garrett
Brandon Garrett
Rodney Reed's case is the most recent, but certainly not the first, example of prosecutors and judges fighting for years to prevent simple DNA testing that could shed light on innocence.

In the more than 30 years since the first post-conviction DNA exoneration in the U.S., close to 400 people have been exonerated through DNA tests. And yet, our criminal legal system still has not fully learned just how badly it can get it wrong and how readily it can correct injustices.

The specific question before the U.S. Supreme Court in Reed v. Goertz was whether the statute of limitations to file a civil rights lawsuit in federal court under Title 42 of the U.S. Code, Section 1983, challenging a denial of post-conviction DNA testing under a state statute, begins to run after a state trial court denies a request for DNA testing, or whether it begins to run after the high court of the state denies relief.

In a 6-3 ruling written by Justice Brett Kavanaugh, the court held on April 19 that when a person in prison files a civil rights lawsuit seeking DNA testing, the statute of limitations does not run out until the state courts have had their final say.

The ruling is straightforward, makes sense from a judicial economy perspective, and avoids duplicate litigation where people would have to file premature lawsuits while state courts are still looking at a claim.

The underlying facts and case raise far broader issues, which the lower federal court will have to grapple with on remand, and which our legal system still has not adequately dealt with: the problem of new evidence of innocence. And the opinions by the dissenting justices suggest that, like the Texas judges in state court, many judges rule so as to cast a blind eye to innocence.

Reed was convicted and sentenced to death for the 1996 murder of Stacey Stites in Bastrop County, Texas.

Reed claimed that he was innocent and had a consensual relationship with the victim, and that it was her abusive and jealous fiance — a police officer from a nearby town — who had committed the murder. Reed is Black, and the fiance and victim were white.

The evidence at trial seemed powerful: A DNA test of semen matched Reed's DNA, and prosecutors argued Reed did not know the victim, but rather kidnapped, raped and murdered her.

In the years since the trial, a wide range of exculpatory evidence has come out, including that prosecutors knew before trial that witnesses described abusive behavior by the fiance, and that they knew Reed had a consensual relationship with the victim, which would explain the DNA result.

Yet courts denied relief as the new evidence mounted, including by copying near-verbatim factual findings drafted by the prosecutors — a surprisingly common practice, which would seem absurd except for the fact that it does perhaps accurately capture the rubber-stamp nature of such rulings.

On top of this exculpatory evidence pointing to prosecutors' pretrial knowledge, Reed sought post-conviction DNA testing for a number of items. The victim was strangled, and one key piece of evidence is the braided belt used to strangle her — the piece of evidence for which the state has fought for years to prevent DNA testing.

However, like many states, Texas — in reaction to the wave of DNA exonerations across the country — passed a statute in 2001 giving persons convicted of crimes the right to request post-conviction DNA testing. The standard is that one must show a reasonable likelihood that the material is suitable for testing.

The statute has been amended several times by lawmakers, because Texas judges have continued to interpret it narrowly.

Reed requested the testing in 2014. And despite how probative testing on the belt, and other pieces of evidence, would clearly be, the Texas courts all denied relief.

They said the DNA results might not make a difference, which is the sort of circular Catch-22 logic one often saw in the early years, when courts did not yet understand what a DNA test could do.

Then, the U. S. District Court for the Western District of Texas and the U.S. Court of Appeals for Fifth Circuit ruled that during the time the Texas courts heard the case, the two-year time to file had already elapsed.

This pattern is, unfortunately, not unusual: In case after case, we've seen how judges have cited to purportedly overwhelming evidence of guilt, or the power of a confession, or the reliability of an eyewitness — when in fact, DNA tests later showed that the person was innocent, and the judges were wrong to be so confident in their ability to gauge guilt.[1] Basically, a person is viewed as guilty and "dead to rights."

Decades into the modern DNA testing era, DNA tests often take years to secure, even for the innocent. Even in the most serious death penalty and murder cases, we still see courts doing the same, to this day.

In 2009, the U.S. Supreme Court heard a case, District Attorney's Office for the Third Judicial District v. Osborne, in which the respondent, convicted in Alaska, sought DNA testing post-conviction. The court held that a person has a due process right to challenge arbitrary denial of testing under a state DNA statute.

That ruling is important because so many judges have denied testing, clearly available under state law, because they perceive the convicted person as guilty.

And to be sure, in its 2011 ruling in Skinner v. Switzer, the Supreme Court emphasized that a civil rights suit can be filed to challenge a state denial of DNA testing, but that it is a "slim" remedy, requiring a due process showing that the state acted arbitrarily in denying testing.

Until this case reached the Supreme Court, judges at every level denied access to DNA testing — despite a clear state statute — to Reed, a person with strong evidence of innocence, including evidence concealed by the state.

After the Supreme Court's ruling in Reed, it is clear that a person should finalize challenges to denials of post-conviction DNA testing in state courts, before filing a civil rights suit in federal court. That avoids duplicative litigation and makes the filing order clear.

However, it does not address the underlying problem that judges remain hostile to granting access to new evidence of innocence, much less relief based on that new evidence.

One underlying problem is that there is no constitutional right to claim innocence. Indeed, the U.S. Supreme Court has only hypothetically recognized a constitutional right to claim innocence, beginning in its 1993 ruling in Herrera v. Collins.

In more recent years, the court has made it extremely difficult to ever introduce new evidence in a federal habeas petition.

In response to this emphasis on cutting off judicial review, even in the face of potential wrongful convictions, all the states, and the federal government, have passed new innocence statutes. Yet even in the face of laws entitling people to seek DNA testing, judges often interpret them in arbitrary ways.

And for those who lack any DNA evidence to test, but must rely on other types of new evidence of innocence, even greater barriers remain.

Before long, we will have had over 400 DNA exonerations in the U.S., and many thousands more exonerations in cases that did not focus on a post-conviction DNA test.

There is no comparable body of exonerations in the world.

Fortunately, many prosecutors now proactively join in efforts to investigate wrongful convictions, including by creating conviction integrity units. Many judges now readily consider requests for post-conviction discovery. States continue to pass new laws to improve innocence claims and aiming to prevent wrongful convictions in the first place.

Yet the process for even obtaining access to new evidence of innocence still often remains disjointed and unforgiving, as cases like Reed's show.

If Reed is guilty, then the test can quickly resolve the issue, and if he is innocent, then no delay is justified.

If we are willing to litigate for years — at great expense, and even up to the Supreme Court — to prevent access to simple DNA tests, then it is time to revisit, in our laws and our courtrooms, our national commitment to the bedrock presumption of innocence.

Brandon Garrett is the L. Neil Williams Professor of Law at Duke University School of Law and the faculty director of the Wilson Center for Science and Justice at Duke Law. He is the author of "Convicting the Innocent: Where Criminal Prosecutors Go Wrong."

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] You can read in detail about these cases and judicial opinions on my DNA Exonerations resource website.

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