Jordan Smith | June 19, 2012
Updated Friday, June 22, 4:54PM At first glance, Texas’s capital case against Rodney Reed looks fairly persuasive. Nineteen-year-old Stacey Stites was found dead in a wooded area just off a county road in Bastrop, Texas, in 1996. She was half-naked, with Reed’s DNA inside her. The DNA was the “Cinderella’s slipper,” special prosecutor Lisa Tanner told the jury at trial: it matched Reed’s; therefore, Reed was the murderer. But what if it weren’t that simple? It has been fourteen years since Reed was convicted and sentenced to die for Stites’s murder. Since then, evidence has accumulated that calls into question the state’s case against him—evidence that includes ineffective lawyering, possible prosecutorial misconduct, junk science and racial bias. Perhaps most damning, it also includes a failure by police to fully investigate a man with a troubling history of violence against women: Jimmy Fennell, Stites’s fiancé, a former police officer who is currently serving prison time for kidnapping and sexual assault. Reed, who is black, has maintained his innocence and said that the DNA can be explained because he was having a sexual affair with Stites, who was white. In small-town Texas such an illicit, interracial relationship remains an explosive revelation—one that Reed’s supporters say infuriated Fennell, who is white, giving him a strong motive to harm his young bride-to-be. Did Fennell kill Stacy Stites? And can Reed prove it? A federal district judge in Austin is in the process of deciding whether new evidence pointing to this scenario means Reed should get a new day in court. In the meantime, Reed remains on death row, the possibility of an execution date looming overhead. Stites disappeared in the early morning hours of April 23, 1996. At the time she was living in an apartment with Fennell in the small town of Giddings, where he worked as a cop. According to Fennell, she left their home in his red Chevy pickup, heading to work for a 3:30 am shift at a grocery store in Bastrop, roughly thirty miles away. The same truck was found later that morning, parked at nearby Bastrop High School. Just before 3 pm, a passerby picking flowers on the side of the road discovered Stites’s body. She was dead, left in a ditch off the side of the road, half-dressed in her work uniform—her name tag wedged between her legs in a macabre greeting—and with a ligature mark embedded in her neck. It was nearly a year later that DNA taken from a vaginal swab was matched to 29-year-old Reed, a Bastrop resident with a history of being in trouble with the law—notably, for having been accused of rape. He was arrested and charged with capital murder. According to the state’s theory of the crime, Reed, on foot, encountered Stites as she was driving to work. He somehow got her to stop the truck, attacked her, took the wheel, then raped and killed her—strangling her with her webbed belt. He then dumped her body, abandoning the truck just blocks from where he lived with his parents and depositing a piece of the belt on the ground by the driver-side door. But aside from Reed’s semen, no other physical evidence linked him to the crime—or to the scenario the state devised. There were no fingerprints found in the truck or on the belt; no hairs or other biological traces found on Stites were connected to Reed—and there were no witnesses who saw the two together that morning. The DNA was all the state had. And Reed had an explanation for that: he was having an affair with Stites, whom he’d met at a local pool hall in 1995. The DNA was not from that morning, he maintains, but from a sexual encounter he had with Stites more than twenty-four hours before her death. Reed might have been able to prove this, had his lawyers been better prepared. During opening arguments at trial, his appointed defense attorney, Lydia Clay-Jackson, promised jurors that she would prove Reed and Stites were having an affair—one that Fennell eventually found out about, giving him a motive, a “passion,” she said, to kill his fiancé. But the defense team never delivered on that promise. Court records show that his attorneys didn’t start preparing until almost two months before it began, in late March 1998. An investigator was not retained until a month before the trial. “They didn’t know anything,” says Bryce Benjet, Reed’s current lead attorney. “Basically, they just winged it.” Reed’s attorneys failed to call all but two of many witnesses who could have corroborated Reed's relationship with Stites—including members of Reed’s family—and ignored others who could have provided Reed with an alibi for the night of the murder. The defense also failed to hire an expert to counter crucial medical testimony from state witness Karen Blakely, an analyst with the Department of Public Safety, who testified that Stites had clearly been raped since the discovered semen included sperm with intact heads and tails. According to Blakely, sperm from an earlier encounter would have broken down before she was ever autopsied. But that, says Benjet, is nothing more than junk science—an opinion reiterated in readily available medical literature. Indeed, in a review of the medical evidence at the request of the Austin Chronicle, Dr. Lloyd White, a well-respected assistant medical examiner in the state, said that intact sperm can be found in the vagina up to a week after intercourse. Moreover, Dr. LeRoy Riddick, a former Alabama state forensic pathologist whom Benjet retained on appeal, has concluded that there is no evidence at all that Stites was raped. “The best indication of non-consensual sexual contact is the existence of other injuries, such as being held down,” he wrote in a sworn affidavit that is part of the record now before the federal court. “There are no injuries of this type. Therefore, it cannot be said from the evidence adduced at the autopsy that the sexual contact was non-consensual.” Riddick is also critical of police conduct at the crime scene, which could have compromised any forensic evidence presented by the state. Officers initially on the scene covered the body first with a blanket, which experts say could have introduced foreign matter to the body or obliterated trace evidence linking Stites’s killer to the crime. Later, crime scene investigators undressed the body while still in the woods—further contaminating potential physical evidence on the clothing or body—and did not collect a body temperature (which could have helped to more reliably estimate time of death). They also failed to change their latex gloves while collecting biological samples. Meanwhile, the police investigation of Fennell was cursory at best. Despite the fact that it was supposedly the last place where Stites was seen alive, police failed to search the apartment where she and Fennell lived. This is particularly surprising given that Fennell told police that he hadn’t actually been awake when Stites left for work the morning she was killed. He just said she typically left for work around 3 am. Investigators also returned Fennell’s red pickup truck to him before evidence testing was complete. He quickly sold the truck. Benjet believes that it wasn’t until later on that police began to wonder if Fennell might have been responsible for his fiancé’s death, but that by then it was too late to effectively look into it. Although police said they thoroughly investigated Fennell, there is little proof to that effect. Fennell also failed two polygraph tests, each time showing deception when answering “no” to the question of whether he’d strangled Stites. Adding to this evidence, in recent years, a trove of troubling information about Fennell’s relationships with women has become public record. In 2008 he pleaded guilty to the kidnapping and sexual assault of a woman he encountered while on duty as a police officer in the town of Georgetown, where he took a job after Stites’s death. He was imprisoned and is slated for possible release in October. Following that conviction, additional evidence of Fennell’s alleged stalking and sexual assault of a handful of women—some former lovers, some women he met on the job—came to light, says Benjet. This includes a woman who said Fennell raped her after picking her up on a drug charge; according to her, Fennell asked her what she’d do to get out of the charge, then took her to a secluded location and assaulted her. Later, she said, he called her repeatedly to ask her out on dates. Another person, who previously worked at a juvenile detention center with Fennell’s current wife, told police that Fennell had questioned him about whether his wife was “seeing someone” at work. Fennell’s wife told the colleague that Fennell was “jealous and had a temper”—an accusation that had also been made by friends of Stites’s during the couple’s engagement nearly a decade before, and which has been repeated by other former girlfriends of Fennell’s. Reed’s appellate defenders have also unearthed an account from a Dallas cop, Mary Blackwell, who said that during a police academy class in 1995, she heard Fennell say that he would strangle his girlfriend with a belt if he ever caught her cheating. After discovering in 1998 that Stites had been strangled with a belt, Blackwell said she passed the information on to Reed’s defense investigator, who said he turned the information over to the district attorney’s office. But the Bastrop DA’s office denied ever receiving the information. That was the second piece of potentially exculpatory information that the DA’s office denied having; it also denied ever knowing that another woman claimed to have seen Stites and Fennell together in a convenience store parking lot early on the morning of her murder. Thus far, the State of Texas has rejected or downplayed the accumulated evidence against Fennell as unconvincing. The woman who claimed to see the couple in the parking lot, for example, had previously been busted for a DWI by Fennell, making her story suspect; Blackwell’s story couldn’t be confirmed by anyone else in the academy class. In a 218-page response to Reed’s 2009 appeal, Assistant Attorney General Tina Miranda wrote, “Reed attempts to overwhelm this Court with what may appear on the surface to be mass of evidence pointing to his innocence. Quantity, however, does not translate to quality. With his scattershot approach, it would seem that Reed believes his innocence may be proven by simply creating some doubt as to his guilt.” This, of course, is the baseline standard for a jury to convict in the first place. The failure of his trial lawyers continues to haunt his case. “Reed’s inability to demonstrate that he and Stacey were in a relationship not only undermines his attempt to blame Fennell for her murder, but it cripples his attempt to prove that he did not sexually assault her,” Miranda wrote. More importantly, Miranda noted that the evidence of Fennell’s proclivity for violence towards women would not be enough to connect him to Stites’s murder. “[P]roving that Jimmy was possessive and abusive, does not prove that he killed his fiancé,” she wrote. Judges who have upheld Reed's conviction have shown bias at every turn, and sometimes conflicts of interest. Attempts to show that his trial judge, Harold Towslee, clearly favored the prosecution have since been put to state District Judge Reva Towslee-Corbett, Towslee’s daughter, who replaced him when he retired. At times she has shown open hostility to Reed’s appeals. According to Benjet, after an evidentiary hearing in 2006, Towslee-Corbett rubber stamped a set of findings drafted by the state, despite the fact that a number of them weren’t supported. Could she get in trouble for that? “Nobody has before,” says Benjet. “That’s just the way it is.” It’s been nearly a year and a half since a federal court has had before it the complete case record for Rodney Reed. It will now have to wade through dense procedural issues before determining what, if any, relief he may be entitled to. Complicating the process are the legal hurdles imposed on death case appeals brought after passage of the 1996 federal Antiterrorism and Effective Death Penalty Act, which has, in the name of swift finality, constricted the kinds of claims that can be heard in federal court. Among the issues the Texas court will have to decide is whether Reed’s mass of evidence can be considered, given AEDPA restrictions. The court could defer to the state court’s findings and dismiss the case—hastening Reed’s execution. Or it could look at all the evidence and decide, without any further hearings, that Reed is due a new trial. Or the court could take a halfway approach and find that another evidentiary hearing is warranted—perhaps on Dr. Riddick’s medical evidence, which has not yet been subject to any hearing—before any conclusions can be reached. Particularly given the state’s willingess to kill in the face of strong innocence claims—and a recent investigation uncovering evidence that Texas wrongfully executed Carlos De Luna in 1989—Benjet says he doesn’t mind that the court is taking it’s time before issuing its ruling. “In the end,”he says, “I don’t want anybody to rush this.” “This is a case that exemplifies just about everything that is wrong with the death penalty and in criminal justice in America,” he says. Whether the federal courts agree, and can right those wrongs, remains to be seen. UPDATE: On June 15, in an 82-page recommendation, US magistrate Judge Andrew Austin recommended that Reed's appeal be denied. Writing that he has carefully considered each of Reed's arguments because "I have no desire to be complicit in the execution of an innocent man," he wrote that he finds no "basis to believe that Rodney Reed is innocent of the rape and murder of Stacey Stites." Austin writes that the investigation of Stites' fiance Jimmy Fennell was sufficient to clear him as a suspect—police "zeroed in" on Fennell, he wrote. Notably absent from the lengthy report is any substantial discussion of the forensic evidence that was never countered by a defense expert. Whether Reed will be granted an evidentiary hearing on any of the issues he's raised on appeal remains to be decided. Austin's report will now go to District Judge Lee Yeakel for consideration; Reed's attorney Benjet says he plans to file objections to the report and will ask Yeakel for a hearing on the matter.