AUSTIN, Texas (KXAN) – With six days to live, there is currently no judge appointed to hear pleadings that could delay Rodney Reed’s execution. That’s the summary of the latest filing in the case with the Texas Court of Criminal Appeals.
Reed’s attorneys filed a response with the appeals court Wednesday after the court canceled a hearing Reed’s side scheduled in Bastrop County with Judge Carson Campbell. The hearing was related to a Nov. 4 motion Reed’s lawyers filed, asking to have the July 2019 execution order struck down.
The appeals court abruptly canceled the Reed hearing in Carson’s court the day before it was to happen and demanded the judges involved in the case — Doug Shaver and Carson Campbell — submit written responses to the appeals court by 4 p.m. Wednesday.
In the latest filing, Reed’s attorneys want the appeals court to stay his Nov. 20 execution so the court can sort out what’s become a legal tangle surrounding Judge Shaver’s authority to have signed Reed’s execution order.
Reed’s side argued in a Nov. 4 motion that Shaver’s 2014 appointment should have ended sometime in 2014. Shaver was not re-appointed after 2014, so Reed’s side claims his term ended and when he signed the execution order in July 2019, Shaver had no legal authority to do so.
The prosecution filed a response to Reed’s lawyer’s claims saying Shaver’s appointment would end when he’s recalled or the presiding judge terminated his appointment. Judicial records show Shaver’s appointment was never recalled or terminated at the time he signed the July 2019 execution order.
The prosecution argued Campbell did not have the authority or jurisdiction to rule on Shaver’s decisions.
Shaver was appointed to preside over Reed’s case in May 2014 after Reed’s judge at the time, Reva Towslee-Corbett, recused herself in April of that year. Towslee-Corbett’s father, Harold Towslee, was Reed’s trial judge and concerns of a potential conflict of interest arose because Towslee-Corbett would likely be deciding issues concerning her father’s trial work in the Reed case.
Towslee-Corbett voluntarily stepped down and then-retired District Court Judge Doug Shaver was assigned to take over the case. Shaver, like many retired Texas judges, was placed on a list of available former judges who could be used to help hear cases across the state when needed.
Court records show Shaver’s appointment —now spanning more than five years — was never renewed or terminated. That span of time is longer than the time a duly elected district court judge would have been able to preside over a case without the public re-electing a judge to the position.
Reed’s case file housed inside the Bastrop County District Clerk’s Office still shows Shaver as the presiding judge as of Nov. 13. Orders awaiting Shaver’s signature filed within the last two weeks contain Shaver’s name at the bottom of the forms.
Confirmed: Judge Shaver is done
Over the past week, KXAN has reached out to both of Shaver’s bosses in the Second and Third Administrative Judicial Region regarding his assignment to the Reed case. Neither mentioned the fact that Judge Shaver hasn’t presided over the Reed case since Aug. 19, 2019.
That meant there was no judge assigned to Reed’s case for the past three months to decide any issues that might arise before the state put Reed to death on Nov. 20.
Reed’s side, after discovering the issues concerning Shaver’s appointment, filed two motions Nov. 4. What they did not know at the time was there was no judge assigned to the case to rule on those motions.
In Reed’s latest response to the Texas appeals court filed Nov. 13, his attorneys included a letter from Texas Supreme Court Chief Justice Nathan L. Hecht to Judge Shaver dated Aug. 19, thanking Shaver for “serving the Texas judiciary and the people of Texas for so many years.”
“I am in receipt of your letter dated August 9, 2019, notifying the Court of your need to discontinue further assignments and to change your eligibility status as a visiting judge.”Chief Justice Nathan L. Hecht, TX Supreme Court
The letter appears to be a formal acceptance of Shaver’s retirement.
Even the Bastrop County District Clerk’s Office was unaware Judge Shaver had retired three months ago, according to an email chain included in Reed’s latest filing. “Judge Shaver has informed me by phone today that he is still the current judge on the Reed case and he is ONLY no longer excepting [sic] new assignments,” a clerk’s office staffer wrote to Reed’s attorney, Bryce Benjet in a Nov. 5 email.
In a letter filed with the appeals court on Nov. 12, Bastrop County’s elected district court judge, Carson Campbell, appeared unaware Shaver had retired when he received a notice from Reed’s attorneys asking him to hear their Nov. 4 motions.
“After receiving the Motion and request, I received an email from the Assistant to Judge Underwood that Judge Shaver is no longer sitting as a visiting judge,” Campbell wrote. He said he then went on to set the hearing for Nov. 13 in his court, which was then canceled.
For the past week, we’ve attempted to find out exactly when Shaver retired. None of the judge’s offices — even the office that appointed Shaver —disclosed that information to KXAN. Emails to Shaver asking that same question have not yet been returned.
On Aug. 9 — just weeks after signing Reed’s death warrant, Judge Shaver sent an email to Judge Billy Ray Stubblefield’s assistant expressing concerns over his own ability to preside over cases.
“I believe that I am still in excess condition mentally and physical [sic]. The problem is that I simply have been lucky to get old, I have been in fear that I would or would not do something that could affect the outcome of some important legal matter,” Shaver wrote in that Aug. 9 email.
Stubblefield is the presiding judge over Shaver and was essentially Shaver’s boss.
The wording in Shaver’s email appears to indicate his “fear” about his decision-making was something he recognized some time before he wrote the email. However, he did not detail a timeframe regarding when his concerns started.
Shaver signed Reed’s death warrant on July 23, 2019 — 17 days before sending the email to Judge Stubblefield.
The Texas Court of Criminal Appeals’ online docket search shows the court has received letters from the judges and defense but not from the prosecution. The court’s opinion on what to do with the pending Reed motions — including staying his execution — and the appointment of a judge to the case has not been handed down as of this report.