The Leviathan

Tales from death row: Justice for Rodney Reed

By: Caitlin Adams

I've written briefly on this subject in "Why is Rodney Still Locked in a Cell" and in last week's blog as well; I hope you will bear with me, as I process this most recent disappointing development in the fight for Rodney's life. I am experiencing a million different emotions, "Lou" and "What Is" aside, Judge Yeakel's ruling is requiring a great deal of adjustment, so much so that I'm feeling compelled to have a few more words to say about "The Leviathan in the Room".

What I've learned about the workings of the criminal justice (or injustice system) as I've studied Rodney's case, is that if you are not fortunate enough to have good legal representation at the guilt and innocence phase of your case, that lack of good representation continues through your direct appeal, and the chances your case will be overturned or that you will be granted any relief during the habeas corpus phase of your case is pretty close to nil.  Rodney did not have adequate legal representation during the guilt and innocence phase, during his direct appeal phase, or in the first habeas corpus phase.  Rodney and his defense team are faced with a monumental task.

Former Medical Examiner, Robert Bayardo, one of the prosecution's expert witnesses in Rodney's trial came forward on August 13, 2012 in a written declaration presented to Judge Yeakel's court, stating that the state misconstrued his testimony and used his testimony in a manner that he had never intended. Dr. Bayardo also said that if the state would have been forthright and told him how they planned to use and interpret his testimony, he would have told the state not to pursue that course. Dr. Bayardo also stated in the declaration that he had made clear errors in his evaluation of the evidence in Rodney's case. Judge Yeakel dismissed this evidence as "suspect" because of the timing of Dr. Bayardo's decision to come forward.  Judge Yeakel also stated in his order that Dr. Bayardo's new testimony would not have impacted the outcome in the original trial, had it been presented to the jury at the time.

Along with Dr. Bayardo's declaration, Rodney's defense team also presented a written affidavit by his attorney of record for his first habeas corpus brief, William Barbish, testifying to the fact that he did not provide Rodney with adequate representation, outlining the specific ways that he had failed to do so, and expressing that he feels this lack on his part negatively impacted the course of Rodney's case.  Judge Yeakel dismissed Mr. Barbish's testimony as well, on similar grounds.

Every single piece of evidence, from the DNA linked to two police officers; to reports of Ms. Stites being seen with Jimmy Fennell on the morning of her murder; to an affidavit submitted by another police officer who heard Mr. Fennell state that he would "strangle her [Stacey Stites] if he found out she was cheating"; to not a single witness who knew of Rodney's relationship with Ms. Stites being permitted to testify, having been declared not credible by the trial judge. Not to mention issues that were never raised at trial or on direct appeal, a change of venue being denied by the trial judge, the all-white jury never being challenged. The entire prosecution’s theory of the case is based on Jimmy Fennel's version of events of the night before and early morning of the day Ms. Stites was murdered, somehow the courts find Mr. Fennell credible—incredible! Many more inconsistencies, errors, evidence not tested, too many and much to list—all dismissed as irrelevant, as if all of this evidence had been presented at trial it would have had no impact on the outcome. That not one juror would have had any doubts about the state's theory of the crime. Not one juror. How can anyone even remotely think this?

It would seem straight forward: you have new evidence, you have inadequate representation, you have myriad inconsistencies, where's the problem?  The problem lies with a law passed in 1996.  The description that follows is a layperson's rendering.  I'm not an attorney and based on what I've come to learn am very grateful I didn't choose that career path!  I've checked my perceptions and understanding of this law with attorneys though and in a nutshell version I got the thumbs up.

The law is called the Anti-terrorism Effective Death Penalty Act, AEDPA for short.  Orrin Hatch is the author of this legislation and President Bill Clinton signed it into law.  The Oklahoma City bombings were the impetus behind the AEDPA.  The down and dirty on the AEDPA—it’s designed to make it extremely difficult, if not impossible, to get a habeas corpus claim in a capital/death penalty case upheld, short of definitive proof of innocence.  The AEDPA is an attorney's worst nightmare. It is a procedural quagmire.  There are lots of hoops to jump through and they have to be jumped through in the correct order, but that can be tricky because every judge may have a different idea about what the right order is and then when jumping through the hoops you have to beat the clock. Essentially, the new evidence and facts just might not matter, because you missed a hoop, went in the wrong order, or oops, didn't beat the clock. The threshold of relevance of new evidence that is required, which is determined by the judge's interpretation of the AEDPA requirements, is often so extraordinarily high that the evidence essentially must prove beyond a reasonable doubt the claimant's innocence, as in the case of DNA evidence or if someone has direct knowledge of the crime and the actual perpetrator comes forward. Short of this, the vast majority of evidence is dismissed as irrelevant, suspect, and inadmissible.

Judge Lee Yeakel's order to deny relief in Rodney's case, as appalling and inexplicable as it is to those of us who know Rodney is innocent, is almost a completely expected outcome in "legal land" where the AEDPA rules the habeas corpus landscape.  Those of us fighting for Rodney's life and others lives on death row are up against a leviathan—a leviathan whose constitutionality has never been successfully challenged.  A leviathan that the majority of American citizens don't even know exists. A leviathan that became the law of the land under the guise of protecting Americans from the terrorist threat. The problem is the leviathan is the terrorist.

In some really sick and twisted way, I am grateful I met the leviathan because without having made its acquaintance I would be completely baffled, dumbfounded, perplexed by Judge Yeakel's order.  Now, I'm just pissed off!  The line from the old movie, Network, keeps coming to mind, "I'm mad as hell and I'm not going to take it anymore."  I'm not going to take it anymore.  I'm going to write, organize, strategize, petition, email, protest, and march. Then I'm going to do it all again, and I will keep on until I take my last breath. Even then if it's possible, I'll keep on agitating on the other side!

And thanks for bearing with me!