By Isadora Vail
AMERICAN-STATESMAN STAFF
Thursday, July 17, 2008

The attorney for death row inmate Rodney Reed filed a motion Wednesday asking an appeals court for a new trial because of what he cited as new evidence against a former suspect in the murder of Stacey Stites.

Bryce Benjet, Reed’s attorney, said the new evidence about Jimmy Fennell Jr., Stites’ fiancé at the time, includes what Benjet said was Fennell’s personal Web site that contains sexual content and violent images.

Reed is on death row for the 1996 strangling of 19-year-old Stites in Bastrop County, but Reed’s attorney says Fennell, then a Giddings police officer, should have been investigated more thoroughly as a suspect.

Benjet said other recent evidence includes a woman’s allegations that Fennell acted improperly as a Georgetown police officer when he pulled her over and Fennell’s admitting in May to kidnapping and having sex with a woman in custody in October.

Fennell resigned from the department in January and is awaiting trial in the kidnapping incident.

“I think it confirms everything about Jimmy Fennell’s character that we’ve said from the beginning,” Benjet said. “If the jury knew everything that we know now, I’m confident that a jury would never have convicted Reed.”

Fennell’s attorney, Bob Phillips, said Benjet is becoming desperate and that the conviction won’t be overturned because Reed’s DNA was found on Stites’ body.

“Every time there is another news story, it has the potential to taint any jury pool for my case, whether the allegations are true, false, reckless or utterly unfounded,” Phillips said.

Fennell pleaded guilty in May to kidnapping and improper sexual activity with a person in custody and would have received two years in prison and 10 years probation under the plea deal, but District Judge Burt Carnes denied the agreement and set a September trial date.

Fennell is accused of driving an intoxicated woman to a secluded area, asking her to dance for him and then raping her as she leaned on his police cruiser, according to court documents.

Benjet said an image of a woman leaning over the back of a car in revealing clothing on what he says is Fennell’s MySpace page is relevant because of the allegations of raping the woman against his car.

The Web site does not contain Fennell’s name, and the owner of the site is only pictured in full police SWAT gear, including a face mask, but Benjet said an acquaintance of Fennell came forward with the site and said Fennell used it to solicit women for sex.

Phillips said there is no way to positively identify whose page it is and that the images Benjet cites were not posted by the site’s owner.

“I have no idea if this is Jimmy Fennell’s Web site, but a lawyer can allege anything he wants in a writ of habeas corpus,” Phillips said. “Proving it is quite another matter.”

ivail@statesman.com; 246-0053

Those close to the death row inmate’s murder case said there are still many unanswered questions.

“They need to know that I’m an innocent man sitting on death row,” Reed said.

In Texas 33 men have served a combined 427 years in prison for crimes they did not commit. And those are only the known cases.

“Occasionally, people are going to be convicted when they’re actually innocent,” Reed said.

Attorney Bryce Benjet represents Reed, who was convicted in the strangulation death of 19-year-old Stacy Stites.

Reed has always maintained his innocence, claiming his DNA found in Stites’ body was there because the two were secretly dating.

“The last time I saw Stacy alive was the night before, on the 22nd, we were together, we had sex,” Reed said in a 2003 interview.

Yet it is not Reed’s DNA that is at issue. DNA found on beer cans found near Stites’ body excludes Reed but points to two former police officers, who were also friends of Stites’ fiancé — then Giddings police officer Fennell.

Despite failing two lie detector tests when asked if he killed his fiancé, Fennell was ruled out as a suspect, because investigators said he could not have dumped Stites’ body and returned home in the established timeline.

That scenario also assumes Fennell was alone and did not have a ride.

A report issued by the Department of Public Safety crime lab links the beer cans to David Hall, who was then a Giddings police officer. He was also friend, next-door neighbor and partner of officers Fennell and Ed Samela.

A further DNA report excludes 99.9 percent of the entire Caucasian population.

Hall and Samela could not be excluded.

Samela has since killed himself.

“The DNA on these beer cans links law enforcement officers to the crime scene, associates, close associates of Mr. Fennell,” Benjet said.

Private investigator Duane Olney said DNA evidence was withheld by prosecutors, and thus never heard by the jury.

“It may have been an honest mistake, it doesn’t matter, we didn’t get it,” Olney said. “It is frustrating when you look at all these things that are starting to fit into place.”

One such example involves the man who oversaw the Reed investigation, Richard Hernandez, Bastrop’s former sheriff who also pleaded guilty to six felonies.

There was also a Bastrop woman who said she wanted to testify but was never called. She said she had seen Fennell and Stites together the morning of the murder.

“When you have an eyewitness that sees something that is completely inconsistent with the story that was presented for which Mr. Reed got the death penalty, that’s the kind of information a jury ought to hear,” Benjet said.

Meanwhile, Fennell will be locked up for his most recent crimes against a woman.

With the Reed case still in the appeals court, prosecutors have declined requests for interviews.

Yet state sources for KXAN Austin News said if you’re going to look at the arrest of Fennell as proof that Reed is innocent, then the same holds true for the death row inmate’s background.

Reed’s criminal record includes three charges for sexual assault, one for criminal attempt and one for unauthorized use of a motor vehicle. All were filed on the same day just prior to Reed’s murder trial, and they are all still open, meaning Reed was never convicted of the charges.

Reed’s lawyers have asked the Texas Court of Criminal Appeals for a new trial. They cited Fennell’s recent charges in their motion.

The appeals court is expected to rule by late August.

In a writ filed with the Court of Criminal Appeals on July 16, attorneys for death row inmate Rodney Reed are arguing that new evidence uncovered about the conduct of victim Stacey Stites’ police-officer fiancé bolster Reed’s claim of innocence. In court filings, Reed attorney Bryce Benjet tells the court not only that a witness has come forward to confirm that Reed and Stites were having an affair prior to her death, but also that there is additional evidence regarding Jimmy Fennell’s apparent proclivity toward sexual violence.

Reed was convicted of the 1996 murder of Stites as she drove to work for an early-morning shift at the Bastrop HEB on April 23, 1996. Stites was strangled with a belt, and her body was dumped alongside a country road just north of town. Although DNA evidence on Stites’ body eventually led investigators to Reed, who acknowledged having an affair with Stites, no other evidence tied Reed to the crime. Reed’s supporters have long argued that Stites’ fiance, Jimmy Fennell Jr., was a far more likely suspect because he was upset about Reed and Stites’ relationship. In fact, although the state has claimed that Fennell, then a Giddings Police officer, was initially a suspect in the murder, documents related to the case show that he was never fully pursued: Police never searched the apartment the couple shared, even though it was, arguably, the last place Stites was seen alive, and they never fully processed Fennell’s pickup truck, which Stites was allegedly driving the morning she was murdered. They instead returned the truck to Fennell within days of the murder. Fennell turned around and sold the truck.

Fennell, who most recently worked as a Georgetown Police officer, was indicted last year on charges including aggravated sexual assault and kidnapping related to his raping a woman he had taken into custody. Last month he agreed to plead guilty to two charges in exchange for two years in a state jail facility, but that plea deal was denied by Williamson Co. District Judge Burt Carnes, and Fennell will now go to trial in September. In addition, Reed attorney Benjet writes that information obtained from the Travis Co. Sheriff’s Office demonstrates that Fennell was accused of trying to force a woman to dance for him naked back in 2004 after he pulled her over near Round Rock for having a “crooked license plate.” When Fennell found out the woman was driving with an expired registration, he asked her what she “wanted to do about that,” suggesting she drive to the parking lot of Inner Space Cavern, disrobe, and give him a “lap dance.” She apparently avoided her fate by mentioning that she was friendly with the wife of the Williamson Co. sheriff. The woman immediately reported the incident to TCSO, but Georgetown Police Department officials apparently did not pursue the complaint.

The latest court filing also notes that Fennell has demonstrated a disturbing propensity for sexual violence on his personal MySpace page where he goes by the name “Point Man.” The Web page features photos of Fennell dressed in a police SWAT-style uniform, often holding a weapon – including one photo where he is armed with an assault rifle. Further, Fennell has posted pictures of women in bondage positions and at least one picture that shows a person dressed as a police officer holding a gun to a woman’s head while she gives him oral sex. Notably, another picture shows a woman from behind bending over the back of a car – the same position in which Fennell’s rape victim reported being assaulted last fall.

“These public documents provide a rough outline of crimes of sexual violence committed or attempted by Mr. Fennell,” Benjet argues in the court filing. “Fennell’s character, credibility and propensity for violence have been at the center of Mr. Reed’s innocence claims,” and Reed should be afforded a new trial, Benjet continues. “This new information that Mr. Fennell used his badge and gun to kidnap and rape a woman in his custody, as well as his other sexual misconduct, is powerful evidence that confirms the other evidence relating to Mr. Fennell’s jealous character, motive, and propensity for violence – especially against women,” reads the court filing. “The denial of guilt found in Mr. Fennell’s … testimony” at Reed’s 1998 trial “must be reconsidered in light of all of the evidence now known.”

Fennell’s criminal attorney, Bob Phillips, told the Austin American-Statesman that Benjet is “becoming desperate” and that making such allegations public “has the potential to taint any jury pool” in Fennell’s sex assault case, “whether the allegations are true, false, reckless or utterly unfounded.”