On July 21, a group of retired federal and state trial and appellate judges filed a “friend-of-the court” brief organized by The Constitution Project supporting Texas death row inmate Rodney Reed’s petition for certiorari before the U.S. Supreme Court.  Reed was found guilty of a 1996 rape and murder of a 19-year-old woman in Bastrop County, Texas, and sentenced to death.  In January, 2014, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit denied Reed’s appeal based on its own analysis of complicated scientific issues, making a “detailed merits determinations on the basis of a cold record.”

The judges submitting the brief argued that “[i]t is a fundamental precept of our judicial system that questions of fact are addressed by trial courts in the first instance.”  They asked the Supreme Court to determine whether the Fifth Circuit panel overstepped its constitutional bounds by engaging in factfinding itself, asking and answering the question of whether Reed’s ineffective assistance of counsel claims were substantial ones—and doing so in the absence of whatever factual development Reed could have presented through cross-examination—rather than remanding the case to the trial court for a determination of the facts.

All of the judges submitting the brief have firsthand knowledge of just how important it is to see and hear witnesses on the stand, as well as decades of experience in understanding the difficulty of discerning issues of expertise, accuracy, judgment, and scientific acumen exclusively from cold appellate records.  “Because it is the trial judge who ‘smells the smoke of the battle’ in the courtroom, the trial judge is traditionally understood to be far better equipped to make findings of fact,” the brief asserts.

The case is Reed v Stephens.  Among the retired judges signing the amicus brief were: Judge W. Royal Furgeson, former federal district court judge of the Western District of Texas; Judge H. Lee Sarokin, former Judge of the Circuit Court of Appeals for the Third Circuit; and Judge Oliver Diaz, former Justice of Mississippi Supreme Court.  The brief was prepared with the pro bono assistance of the law firm Hogan Lovells.