Rodney Reed is a Texas death row inmate. Rodney Reed, an African-American man from Bastrop County, Texas, who is currently on death row for the 1996 murder of Stacey Stites, a white woman, waits on a decision from Bastrop County Judge Reva Towslee Corbett, the daughter of the judge who presided over Reed’s original trial and conviction, on new evidence presented at an evidentiary hearing in March.

In October of 2005, the Texas Criminal Court of Appeals, in what has been called “a rare move,” ordered the case back to the trial court to determine whether the prosecutor's improper conduct—the hiding of evidence that suggested Reed's innocence—violated Reed’s constitutional rights.

The state’s case against Reed, who has maintained his innocence since his arrest for the crime, relied on a single piece of evidence: semen matched to Reed found in Stites’ body.

Reed, who was in jail on cocaine charges when questioned, denied ever knowing Stites and signed a statement to that effect. However, during his trial Reed explained the DNA evidence in the Stites case by claiming he had an affair with her. The affair was kept quiet, Reed says, because he is black and Stites is white, and also because Stites' fiancé, Jimmy Fennell Jr., was a Giddings police officer.

Reed testified he had sex with Stites during the early hours of April 22, a full day before her murder. However, Travis County Medical Examiner Dr. Roberto Bayardo testified that the recovered semen had been deposited recently, thus contradicting Reed's testimony. Reed claimed he denied knowing Stites during questioning because he felt unsafe admitting to the affair.

Reed's defenders posed an alternative theory. They claimed Fennell found out about the affair and murdered Stites. This theory is supported by a number of pieces of evidence. One is a state police report analyzing DNA taken from two beer cans found near Stites' body; the report excludes Reed but does point to two other men — police officers and friends of Fennell.

For some reason or another, this lab report was never provided to the Reed's defense prior to or during his trial. An appellate judge later ruled that not giving the beer can evidence to the defense was not sufficient to warrant a new trial.

Aside from Reed's semen, and despite the brutal nature of the killing, there was also a lack of other physical evidence tying him to the crime scene. There were also no witnesses who could place Reed anywhere near the time and place of the crime scene.

Reed’s defense maintains that prosecutors hid evidence, including two eye witnesses and DNA found at the scene of the crime that implicated Stites’ fiancé Jimmy Fennell, who at the time was a police officer in the small Bastrop County town of Giddings.

At the March evidentiary hearing, two witnesses offered testimony that seemed to shift the onus of suspicion off Reed. The first, Martha Barnett, testified that she saw Stites and Fennell at a convenience store parking lot around 5 am. The two appeared to be arguing. This places Stites alive, with her fiance, two hours after the prosecution’s theory holds Reed killed her.

The second, Mary Blackwell, a police officer in the Dallas area, testified that she was a member of the same police academy class as Fennell. She told the court that she remembers that Fennell remarked to several class members he would kill his girlfriend by strangling her if he was ever to find that she had cheated on him.

When asked how he would make sure his fingerprints could not be lifted from her neck, Blackwell testified that Fennell said he would use a belt. Stites was found strangled with a belt.

Both of these witnesses testified that they made this information known to the Bastrop County District Attorney’s office through their own representation during Reed’s trial. The office categorically denies this, claiming no one in their office knew of the witnesses until after Reed had been convicted and sentenced to death.

Reed is the subject of the documentary film State vs. Reed, produced by Frank Bustoz and Ryan Polomski. Partly as a result of this film, publicity in the Austin Chronicle, and efforts by such groups as Amnesty International, Campaign to End the Death Penalty, and Texas Students Against the Death Penalty, Reed recently had a hearing to determine if he is eligible for a retrial.

Wikipedia.org

New claims in Bastrop muder appeal

Statesman.com

April 24, 2009

Rodney Reed's lawyers have cited new allegations of sexual misconduct against Jimmy Fennel in their latest appeal. Austin American Statesman has more details about the case.

Reed was convicted in the 1996 Bastrop County murder of Stacey Stites, who was Fennell's fiancée at the time. Reed has maintained his innocence, and his lawyers have suggested that Fennell committed the crime.

The appeal continues the bid by Reed's lawyers to reveal Fennell, who is serving 10 years in prison for kidnapping and improper sexual activity with a person in custody, as a sexual predator with a history of abusing women.

The Texas Court of Criminal Appeals has twice in recent months turned back bids by Reed for a new trial.

Filed Tuesday, the latest appeal includes fresh allegations from police reports, including that Fennell forced a woman he met during a traffic stop in July 2007 to have sex with him, that Fennell abused his wife and that he stalked a woman in Giddings in 1997.

"Jimmy Fennell has been a sexual predator for years," said Bryce Benjet, one of Reed's lawyers. "What we have been asking for is a chance for a jury to hear all of the facts in this case."

Fennell's criminal defense lawyer, Bob Phillips, called the additional accusations "questionable in their reliability."

The appeal also includes a vague account of a woman who said she may have seen Reed and Stites together before the killing, potentially significant evidence given Reed's assertion that his DNA was found on Stites' body because the two had a secret relationship.

Benjet said he has not had time to investigate the woman's account.

Stites, 19, was raped and strangled on April 23, 1996, before her 3:30 a.m. shift at a Bastrop H E B. Her body was found on the side of rural Bluebonnet Drive, off FM 1441 near Lake Bastrop.

Reed initially denied knowing Stites but then at trial said the two had been in a relationship. Fennell was a Giddings police officer at the time.

Reed's lawyers have included in previous appeals accusations that Fennell asked a female driver to provide him a lap dance after a 2004 traffic stop and of keeping a MySpace page with sexually explicit and violent images. A former girlfriend accused Fennell in a court affidavit of verbal abuse, racial bigotry and stalking.

The allegations included in Tuesday's appeal surfaced after police arrested Fennell in 2007 and accused him of forcing sex on a woman he met during a domestic disturbance call. When that arrest made the news, calls came in to Williamson County sheriff's investigators and Texas Rangers on the case, said Williamson County District Attorney John Bradley.

Bradley said that the accusations were considered at sentencing but that he did not seek an indictment because they were not the strongest and most serious cases against Fennell.

Because Fennell has been sentenced and his victim last month settled her lawsuit against the City of Georgetown for $100,000, Reed's lawyers recently obtained the entire police investigation of that case, Benjet said.

Among the allegations laid out in the report:

Wendy Smith Wallace told police that in 1996 or 1997, Fennell followed her in a police car while she was riding her bike in Giddings. He stopped when she got to her house, the report said.

• Keith Tubbs, who worked with Fennell's wife, Aida Fennell, sometime before 2004, told police that she once showed up with bruises on her face that she said came after Fennell threw a phone at her.

In March 2007, Fennell brought a woman he detained during a traffic stop to the Georgetown police station and made her strip, the woman told police. He later drove her to a secluded place and forced her to have sex with him in exchange for avoiding arrest, she told police.

In August 2007, Fennell told a woman parked outside a drug house that he found drugs in her car, she told authorities. He did not arrest her but told the woman that he would be at her house at 3 a.m. for what she interpreted as a sexual rendezvous, she said, but he never showed up, the report said.

"We had investigated them thoroughly, and I was prepared to aggressively refute them in trial, and the state knew that," Phillips said. "I think they had very little confidence in the reliability of these outcries."

Who Killed Stacey Stites?

A Bastrop County jury convicted Rodney Reed of murder -- but left many questions unanswered

By Jordan Smith - The Austin Chronicle

May 24, 2002

In May of 1998, a Bastrop County jury convicted Bastrop resident Rodney Reed of the murder of a young Giddings woman, Stacey Stites. Stites was murdered in April of 1996, and Reed was arrested a year later, based on a match of his DNA to semen found in Stites' body. On the basis of that DNA match alone, the prosecution argued that Reed had assaulted, raped, sodomized, and strangled Stites -- although there was no other physical evidence connecting Reed to the brutal crime.

Special prosecutor Lisa Tanner of the Texas Attorney General's Office, who assisted Bastrop D.A. Charles Pennick's prosecution team, argued passionately to the jurors that the case was simple: The DNA was the crime's "Cinderella's slipper." The genetic profile of the evidence could match only Reed, Tanner said, and therefore Reed was the murderer. On the sole basis of that undeniable physical connection, the prosecution's case seemed very difficult if not impossible to refute.

But what if it weren't that simple?

What if the potentially more explosive elements of the case -- that Rodney Reed was a black man and Stacey Stites a white woman, and that Stites' fiancé, Jimmy Fennell Jr., was a Giddings police officer -- had in fact worked their separate influence on the investigation and the trial, and perhaps even determined the final outcome?

Reed now resides on death row in Livingston. But he and his defenders continue to insist that his conviction was a grave miscarriage of justice. The prosecution, they say, failed to investigate fully either the physical evidence or alternative suspects -- especially Fennell -- and Reed's mostly court-appointed defense attorneys did little better. They also charge that the prosecution withheld crucial evidence that might have helped exonerate Reed.

A careful review of the trial record, as well as additional information that for various reasons never quite made it into the courtroom, suggests they may well be right. Six years after Stites' death, the question remains open: Who killed Stacey Stites?

Theories of the Crime

Stites, a 19-year-old Giddings resident, disappeared in the early morning hours of April 23, 1996. According to her fiancé Jimmy Fennell Jr., then a Giddings police officer, she left the apartment they shared to drive his red Chevy pickup to work for a 3:30am shift at the Bastrop HEB. Fennell's truck was found later that morning, parked at the Bastrop High School. Just after 3pm that afternoon, a passerby happened across Stites' body, in a wooded area just off County Road 1441, seven miles outside the city limits. Stites was sprawled, half-dressed, a ropy ligature mark embedded in her neck.

For nearly a year, police investigators considered and eliminated more than 20 suspects in the murder, and it seemed they were no closer to a resolution than they had been the day of Stites' death. But on April 4, 1997, they arrested 29-year-old Bastrop resident Rodney Reed, and charged him with the rape and murder of Stites. The investigators had finally made the connection after matching Reed's DNA, acquired during a 1995 sexual assault case, to the semen DNA found in Stites' body.

In May of 1998 Reed was tried on two counts of capital murder (the first capital trial in Bastrop in nearly 50 years), and was convicted and sentenced to death. Prosecutors successfully argued that at some point on Stites' early morning drive to work, Reed accosted Stites and forced his way into the truck -- while apparently on foot and without the aid of any weapon -- and raped, sodomized, and strangled her with the braided leather belt she was wearing, then dumped her body and abandoned the truck at the high school.

This theory of the crime was deduced, theorized, and then presented at trial from a single piece of evidence: the match of Reed's DNA. Yet no other physical evidence connected Reed to the crime -- neither on the body, in the surrounding crime scene, or in the pickup truck.

In their opening statements to the court, Reed's court-appointed lawyers said they could readily explain the DNA found in Stites' body. Initially unknown to Jimmy Fennell, they said, Reed was having a sexual affair with Stites -- a relationship the attorneys argued would be not only scandalous but also dangerous in a small Texas town. "There was interracial dating in this case," Reed attorney Lydia Clay-Jackson told the jury, "and you will hear from people who will talk to you about the fact that there was a secret affair."

Clay-Jackson also pointed out that the only evidence that Stites awakened on the morning of April 23, 1996, and left for work -- or that she was even alive to do so -- was the testimony of one man: Jimmy Fennell. Clay-Jackson said that the defense would not only demonstrate to the jury that Reed was having an affair with Stites, but that Fennell had somehow discovered the relationship, giving him a highly personal motive -- indeed a "passion" -- to kill his fiancée.

But as the trial proceeded, the defense failed to deliver on its promise. Certain crucial evidence was apparently unavailable to them, and the court transcripts also suggest that the defense attorneys at least in part defeated themselves. For example, although numerous people were prepared to testify that Reed and Stites had been lovers, defense attorneys presented only two of them during the trial, and apparently ignored another witness who could have provided Reed with an alibi for the night of the murder. And the defense failed to challenge other critical evidence, specifically the medical testimony provided by Travis County Medical Examiner Roberto Bayardo, who concluded that Stites had been raped and then murdered within an hour of the time she allegedly left for work, around 3am. Reed's attorneys called no medical expert of their own to challenge Bayardo's opinions, or to lend weight to their own theory of the crime (Somebody's Got to Pay).

And there is one essential piece of physical evidence that Reed's defense attorneys say they never even knew existed. A state DPS lab report, dated May 13, 1998, analyzed DNA taken from two beer cans found near Stites' body. For reasons never satisfactorily explained, that lab report was never provided to the defense prior to or during Reed's trial. The analysis excluded Reed, but two other potential suspects -- former Bastrop Police Officer Ed Salmela (now dead, apparently by suicide), and former Giddings Police Officer David Hall, a good friend and neighbor of Fennell -- could not be excluded. Had they been aware of that DNA evidence, Clay-Jackson said, it would have enabled the defense to offer an adequate explanation of how Fennell could have traveled from Giddings to Bastrop and then back home by 6:45am without the pickup truck, when the call came from HEB reporting that Stites had never arrived for work.

In short, Fennell could have had help.

In 2001, after the DNA analysis was discovered by Reed himself as a newly provided document in his case file, Bastrop District Judge Harold Townslee granted Reed an evidentiary hearing -- but the court ruled the new evidence would not have been enough to create reasonable doubt for the jurors. In February of this year, Reed's subsequent state habeas appeal was also denied -- because the justices ruled that his court-appointed attorney, Bill Barbisch, had failed to file the appeal by the legal deadline. (For more on the missing DPS lab report and other DNA testing see Breaking the Chain, March 1, 2002.) Yet if all this evidentiary detail were not enough to cast doubt on the certainty of Reed's conviction, the case records also show that Jimmy Fennell twice failed lie-detector tests while being questioned about the crime. That is, on each of those polygraph tests, Fennell had showed deception when asked whether or not he had strangled Stacey Stites.

Prime Suspects

On April 23, 1996, Stacey Stites was scheduled to work a 3:30am shift at the Bastrop HEB. According to her mother Carol Stites, Stacey had taken the early morning shift in order to earn an extra 50 cents per hour, money she was going to use to pay for the wedding dress she had put on layaway. Carol Stites said her daughter was very much in love with her fiancé, 23-year-old Jimmy Fennell Jr., then a Giddings police officer. In fact, she testified that the last time she saw Stacey alive, on the evening of April 22, her daughter and Fennell were laughing together on the way to their apartment, located in the same building as her own.

Fennell testified that Stacey went to bed before he did, but that he was asleep and did not awaken when Stacey's alarm rang or when she left for work -- only that he knew she would have done so around 3am.

At 6:45am, an HEB employee called Carol Stites to report Stacey's absence. Carol in turn called Fennell, who came downstairs to borrow the keys to Carol's car -- since Stacey would've had their set, although those keys were never found -- before leaving to try and find his fiancée. Fennell's red pickup had already been found, at 5:23am, parked at Bastrop High School, but that was before Stites was reported missing, and it wasn't until 8am that investigators made the connection. At 3pm, Stites' body was found.

By the time she was found, Texas Ranger L.R. "Rocky" Wardlow had already been notified, and he later became lead investigator on the multijurisdictional case. According to Wardlow's testimony, Fennell "immediately" became the prime suspect. Wardlow would later inform the court that the four or five police interrogations of Fennell were "very adversarial."

Yet Wardlow's investigative report -- as well as the numerous other reports filed by investigators from both the Bastrop Police Department and the Bastrop Sheriff's Office -- fail to confirm the intensity with which Wardlow said Fennell was scrutinized. Fennell was interviewed once on April 23, by then-Bastrop Police Chief Ronnie Duncan; once by Wardlow on April 25; and on April 29, Fennell stopped by the Sheriff's Office to tell investigators about some items he felt were out of place in his truck. On that same day, six days after the murder, the pickup truck Stacey had presumably driven was returned to the man Wardlow referred to as his "prime suspect." As a result, defense attorneys were never afforded the opportunity to confirm any DPS test results, nor were they able to conduct any of their own forensic investigation on the truck.

Investigators met again with Fennell on Oct. 3, to administer a polygraph exam, which Wardlow reported "indicated [Fennell] was deceptive on relevant questions." Finally, on Dec. 18, investigators met with Fennell for the last time, to administer another polygraph exam, with similar results: Fennell's test "reported a deceptive finding ... relating to relevant questions" -- specifically, whether or not he had strangled Stacey Stites. Wardlow notes that Fennell was interviewed following the second failed exam, "but maintained that he had no involvement in or knowledge of [Stites'] death." Fennell said he failed the polygraph because he was so distraught over his fiancée's death, then asked for an attorney. According to the police reports, he was never interviewed again.

Wardlow's report includes lengthy accounts of the process by which other suspects were eliminated, but no similar accounting for Fennell. The omission was apparent to defense attorney Clay-Jackson. "Did you speak to friends of Jimmy Fennell concerning his whereabouts on the late night hours of April the 22nd or early morning hours of April the 23rd?" she asked in court. "I can recall two or three, yes, ma'am," he said. Wardlow said he talked to Carol Stites and Fennell's best friend and neighbor, David Hall -- neither of whom could corroborate Fennell's testimony. Questioned by the prosecution, Wardlow said he was also unable to "dispute [Fennell's] rendition." (Wardlow was unavailable for comment.)

According to Austin attorney Jimmy Brown, one of Reed's first attorneys (retained by the family until they could no longer afford to pay him -- long before the case went to trial), investigators apparently didn't try too hard to discredit Fennell. "It was clear he'd failed the polygraph -- not once, but twice," Brown said. "My question to the state was, how is that? Why do you not consider him a suspect? There was no answer."

Wardlow told the court that investigators never even requested a search warrant for the apartment Fennell and Stites shared because, he said, the investigators lacked "probable cause." However, according to other law enforcement officers interviewed by the Chronicle, obtaining either Fennell's consent or a warrant to search the apartment should have been standard procedure -- since that was the last place anyone had seen Stites alive. "That's crazy. That would've been considered part of the crime scene," said one local officer who requested anonymity. "That would've been enough." Brown calls the failure to search the apartment just another of the investigators' missteps. "That was the last place she arguably was," he said. "I do not see how they could be comfortable with their decision."

Brown said that the DPS had not even completed all the forensic testing on the pickup truck before releasing it to Fennell. "We need[ed] forensic analysis of the cab of the truck," Brown explained. "It doesn't take a rocket scientist to know she had to have been in there. But the truck was gone. Then I find out the truck is given back to the suspect. Why the hell do you give the truck back to him?"

Jimmy Fennell, now a Georgetown police officer, could not be reached for comment. But his mother said that she doesn't understand why questions about Stites' murder keep resurfacing. He "has been trying to put this behind him," she said, "but it keeps coming up again."

But the investigation of Fennell -- or lack of one -- apparently became moot in March of 1997, when David Board of the Bastrop Police Department brought to Wardlow's attention a 1995 sexual assault case in police files. In May of 1995 Caroline Rivas, a former girlfriend of Reed, had told a social worker that Reed had forced her to have sex. The case worker called the police, who collected DNA from Rivas' bed which matched Reed. Reed told investigators the sex was consensual, Rivas declined to testify to a grand jury, and the case was dropped.

Following that old lead, investigators soon matched Reed's DNA to that found in Stites' body, and less than a month later Reed was charged with capital murder.

'He Didn't Have to Rape Her'

It wasn't until after Reed was arrested and charged with Stites' murder, in April of 1997, that Sandra Reed suddenly recalled a seemingly innocuous conversation she had with her son nearly two years before. "He was always dating several women at once," she said. And on one afternoon in October of 1995, he told her about a new girl he'd started dating. "He said something about, 'Mom, I'm dating this girl and she's engaged to a cop,'" she said. "I said, 'What?' I said, 'Rodney, if you should ever be caught with that girl, everything could happen to you.' I said, 'I don't want her over here.' And that was the end of it." Or so Sandra Reed thought.

As self-serving as her recovered memory may sound, Sandra was not the only one who connected her son to Stacey prior to the murder. Court records show 10 other people were publicly identified as witnesses to the affair either during the trial or by affidavit. "Everyone knew," Brown said. "The people who worked with her knew; they confirmed it unofficially. None would come out with it, because we are talking about a white woman who was having sex with a black man in Bastrop -- and then she's dead. But there is no question they knew about it."

Yet during the trial, defense attorneys Clay-Jackson and co-counsel Calvin Garvie failed to call all but two of the numerous witnesses who were ready to testify about the affair. "I was okay with [the attorneys] until the trial," Sandra Reed said. "I was thinking, we've got all these witnesses together, I've got all these affidavits in." But then, Reed's family said, they began to get nervous as the trial continued and none of their witnesses were called. "I said, 'When are you calling the witnesses?'" she asked Garvie. "He said he was using a strategy and that he'd call them tomorrow or the day after," she said. "Well, the day after tomorrow comes and still no witnesses. He did that clear up until the end."

Indeed, one of those witnesses, Chris Aldridge -- a cousin of Reed -- said that he could not only place Stites and Reed together before her murder, but also provide an alibi for Reed on the night of April 23. "We was at the [Bastrop] community center [near Reed's family's house], because we had to go to work the next morning," he said, as part of a crew helping to remodel the local Super S store. "I was with him until about 3 or 4am, then I went home, took a shower, ate something, and walked to Rodney's house, and we walked to work." (Reed claims that yet another witness who might have helped corroborate his alibi -- the realtor who supervised the remodeling job -- also was not called to the stand.)

But that wasn't all, Aldridge said. "I'd seen them together in Bastrop," he said. "We were walking down Main Street ... walking together and she pulled up [in the truck] and started talking to Rodney. That's the first time I'd met her."

In two separate affidavits, Aldridge detailed other encounters he'd had with Reed, including an occasion approximately four months before Stites' death. Aldridge claimed the two men were walking together and were stopped by a Bastrop Sheriff's Office patrol car with two people in it -- one, he said, was Jimmy Fennell, although not wearing his Giddings police uniform. "[He] told Rodney that he knew about him and Sticy [sic] and that Rodney was going to pay," Aldridge recalled.

Aldridge was summoned to appear at the trial and was waiting in the rear of the courtroom, he said, when Reed's attorney Garvie told him his testimony wouldn't be needed. "He went up and told [Judge Townslee] something," Aldridge said. "He was up there for a good two or three minutes, then he came back and said, 'We don't need you.' And I never testified."

Aldridge was not alone. Other acquaintances said they'd seen Reed and Stites together at the HEB, and at least two Reed family friends said the couple had been together at their homes. Significantly, potential witnesses included more than just friends and family of Reed. One was James Robertson, now in the navy and stationed overseas, who said he saw Reed in jail while Reed was awaiting trial. In an affidavit, he said he had known Reed and Stites were dating and had seen them together several times at parties.

In addition, at least one of Stites' own relatives remains unconvinced by the trial's outcome. That person, who asked to remain anonymous, said, "It needs to be investigated more than what was done. I don't think it was investigated the way it should've been. I don't feel that Rodney Reed killed her. He didn't have to rape her, let's put it that way." This same relative said there are other Stites family members who share the same opinion.

According to Clay-Jackson, the decision not to call all of Reed's witnesses was a calculated one. "We spoke, my co-counsel or I spoke, with every single person they gave us as a witness, and it was a double-edged sword," she said. Several of Reed's witnesses had had their own troubles with the law, and several were relatives of Reed. Calling them to the stand, said Clay-Jackson, would have allowed the prosecution to associate Reed with other criminal acts. Moreover, Clay-Jackson said, the prosecution could then have introduced other sexual assault cases the prosecution claimed Reed had committed, even though he had never been convicted of any sexual assault charges. "They would've brought them in ... under [something like] habit or proclivity to show that -- well, see? These bad acts are associated with him."

Reed and his family say they can prove he did not commit the other assaults, and strongly disagree with the exclusion of their witnesses. UT law professor Jordan Steiker said he also finds elements of Reed's defense troublesome. "At least you try to get that testimony in without the bad stuff first," he said. "I would be skeptical of any decision not to."

Finally, there was Stites' friend Ronnie Reveal, who told investigators in February of 1997 about a conversation he'd had with her shortly before her death. "He stated that she seemed down quite a bit and he asked her what was wrong," Bastrop Sheriff's investigator John Barton wrote in his report. "She told him that her and her boyfriend were having problems and also that the boyfriend had a violent temper." Reveal's information was apparently never pursued, and Reveal was never called to testify.

But Clay-Jackson also said that even if the defense had called the other witnesses, she isn't sure it would have done any good. One of the witnesses they did call, Julia Estes, a local bar owner, significantly changed her expected testimony concerning her knowledge of Stites and Reed's relationship, testifying in court to a more tenuous recollection than she had previously expressed to defense investigators. Clay-Jackson believes it was because local law enforcement officials frightened her. "She was told that if she testified that she would pay for it," Clay-Jackson said. "[And] the testimony was different from what she'd told our investigator. [And right] after the trial she was picked up for a DWI."

The court record does not reflect that defense attorneys ever alerted the judge to their concerns that witnesses might have been threatened with reprisals.

According to Reed himself, he had not seen Stites since the night before she died, in the late hours of April 21 into the early hours of April 22, before Stites went to work at the HEB. "The last time I saw her ever was late night Sunday, early Monday," he said.

Reed claims that meeting was typical of the arrangement they'd had since their first meeting in late 1995. Originally, he said, "I bumped into her, basically, at like a gas station that had pool tables in the back, a jukebox -- you know what I'm saying. I bumped into her and we struck up a conversation, small talk. This was late October or early November 1995."

After that, he said, he would see Stites every other week or so. Sometimes she'd stop by the Bastrop community center, sometimes by his parents' house -- even though his mother didn't like it. But more typically, he said, they would meet before she went to work, late at night, and head to the state park, talk, and have sex, which is what he said happened the last time he saw her. "We were at the park; we were kind of in between both [inside and outside the truck]. Yes, I had sex with her." After a while, he said, they drove off and she dropped him near town. "She took a left and went her way, I went mine," he said. "That was the last time I saw her."

Open Questions

Even if Rodney Reed is telling the truth about his prior relationship with Stacey Stites, that alone would not prove he did not kill her. But it would certainly call into question his alleged motivation. On the other hand, if the prosecution's theory of the murder is correct, it would seem almost miraculous that, other than the DNA, no additional physical evidence connects Reed to such a brutal and vicious murder. Aside from fingerprints in the pickup truck that investigators matched either to Fennell or Stites, there were at least two latent prints on the truck that were never matched to any suspects. A single hair found on Stites' back also has never been matched to anyone, including Reed. Aside from that, there was a dearth of evidence -- save for the DNA -- found at the crime scene. No fingerprints were identified on either the murder weapon or on other pieces of evidence -- for example, Stites' plastic HEB nametag found wedged, in a macabre salutation, between her knees. There is also the fact that the defense was never able to conduct any additional forensic analysis on any evidence found inside or on the truck, because the truck was released to Fennell, just six days after Stites' body was found. (Fennell subsequently sold the truck.)

It is this lack of evidence that consumes Reed's mother, Sandra. She doesn't understand how, with so little evidence, her son could end up on death row for a crime she insists he didn't commit. Former Reed attorney Jimmy Brown, however, thinks he may know how it could happen: Reed is a black man, accused of killing a young white woman in a small Texas town. "They [Bastrop County law enforcement and courts] have a much higher level of concern for the protection of Caucasians," he said. And statistics on death penalty cases -- both in Texas and across the nation -- suggest that Brown is right.

According to UT law professor Jordan Steiker, of the 749 people executed nationwide since the reinstatement of the death penalty in the 1970s, approximately 80% of the murder victims for which the death penalty was delivered were white; in capital cases, only 11% of the murder victims were black. Yet the comparable total homicide numbers are sharply different; according to statistics provided by the U.S. Department of Justice, during the years from 1976 to 1999, over 40% of murder victims nationwide were black.

In Texas, the statistics are even more striking: According to data on the Texas Department of Criminal Justice Web site, 267 people have been executed in this state since reinstatement. Of the 200 cases for which the race of the victim is available, not one white person has been executed for the murder of a black victim. Thirty-nine blacks have been executed for killing whites. And according to the Texas Defender Service, 88 blacks are currently on death row for killing whites, but only five whites await death for killing blacks.

"It's a victim's race that has the higher correlation -- prosecutors almost never seek the death penalty in the death of minorities," Steiker said. "Especially in the South, [killing a white person] is treated as the greatest form of rebellion. That's clearly a way in which race plays a role [in death penalty cases]. It's viewed as the deserved penalty for blacks who kill whites."

At present, Reed has a new set of court-appointed lawyers, from the pro bono Texas Defender's Service, who are in the process of reviewing his case in preparation for filing his federal habeas appeal. And despite the remaining questions in the Stites murder case, the federal appeal process promises to be an uphill battle. Because of changes in the laws governing the federal appeal process, enacted in the mid-Nineties, the ability of the federal courts to review a case has changed, offering less latitude for adjudication on questions relating to any new evidence or other legal matters not already taken up by the state courts. "In the mid-Nineties there was kind of a public perception -- and a perception of the Republican legislators -- that federal judges were stepping into state matters," said TDS lawyer Bryce Benjet, one of Reed's new attorneys. "There was the myth of the liberal federal judge stepping in and stopping death penalty sentences based on moral objections. It was a very state's-rights-based [change]."

Benjet declined to comment on any strategies the lawyers may employ in Reed's appeal, but because of the federal habeas rules, it is unclear whether any of the "new" evidence in the case -- such as the May 13, 1998, DPS lab report that the defense said they were never provided during trial -- will ever be legally considered by the federal courts. Because that portion of Reed's state habeas writ addressing the DNA questions was filed late, the state appeal court refused even to consider those claims.

With stringent federal rules to adhere to -- rules that opponents of the current process claim serve merely to "rubber-stamp" state court mistakes -- the questions surrounding Reed's conviction may remain forever unanswered, including the haunting question at its core: Who killed Stacey Stites?

'Somebody's Got to Pay'

By Jordan Smith - The Austin Chronicle

May 24, 2002

In the absence of a consistent or coherent defense, the prosecution's case against Rodney Reed became inexorable, particularly when it came to the medical evidence. Reed's attorneys argued that the lovers' final meeting, on Sunday night, accounted for the semen in Stites' body, but the prosecution contradicted this scenario with medical evidence collected by investigators and Travis County Medical Examiner Dr. Roberto Bayardo, who performed the autopsy on April 24, 1996. It was Bayardo's testimony that established for the court the horror of Stites' death. Bayardo told the jury that Stites had been murdered by strangulation with her braided leather belt, and that she was raped vaginally and anally.

But, according to an independent expert, Bayardo presented forensic details that may well be questionable. He found semen only on the vaginal samples, and said the condition of some spermatozoa (retaining heads and tails) indicated they had been deposited "recently" -- thereby contradicting Reed's assertion that he had sex with Stites nearly 60 hours before the autopsy. Bayardo also said the body's anal dilation and "superficial" lacerations were evidence of anal rape. (There was no similar vaginal evidence of rape.)

Bayardo's testimony was additionally crucial to the prosecution because, to illustrate his argument, Tanner presented to the jury enlarged photos of Stites' body at autopsy -- including an 18-x-20 photo of Stites' anus -- over the vehement objections of the defense. "One of the things that probably cinched the case was that ... blow-up," Clay-Jackson said. "It was supposedly explanatory, but it was just the kind of picture where juries say, this is just so horrible -- somebody's got to pay."

Reed's defense never presented any expert medical testimony of its own, something Nueces County Medical Examiner Dr. Lloyd White said he finds odd. "Especially in a death penalty case, you would think they would," he said. Especially, he added, with a case as seemingly "atypical" as this one. At the request of the Chronicle, White agreed to review the autopsy findings, photos, and crime scene video, and render an informal opinion.

Above all, White said, he was disturbed by the condition in which Stites' body arrived at the medical examiner's office. Members of the DPS crime scene unit undressed Stites' body while she lay on a gurney on the side of the road where her body was discovered. "That's just not a proper environment for that," he said. If they are undressing her, and doing other things, he said, there is no way to ensure the integrity of the evidence, which is why it is best if a body is brought in to the medical examiner's office still clothed. "That's the standard," he said. "The reason is for the preservation of trace evidence [that would help determine cause of death]."

In Stites' case, there is also no confirmed record of the custody and transport of the body from the crime scene to the morgue. According to police reports, Stites' body was removed from the crime scene no later than 8:55pm on April 23, 1996. Yet, according to Travis County Medical Examiner's records, the body was not checked into the Austin office until 11pm that night -- at least two hours later. Normally that trip would take no longer than 45 minutes.

The lapse in time wouldn't be so significant, except that photos of the body taken at the crime scene do not coincide with photos taken at the ME's office the next day. Specifically, the photos show what appear to be numerous wounds on Stites' forehead, shoulders, and chest -- wounds not present in the crime scene photos, wounds that suggest that the body may have been, at least, mishandled during transport. And that calls into question the chain of custody of the body -- crucial in the legal process for establishing the purity of evidence -- and therefore could call into question any physical evidence found during the autopsy. White said the unexplained wounds indicate to him that the body was handled in an irregular fashion. "[It's as if] there was some sort of pre-autopsy there," he said. Yet Reed's attorneys never raised any questions about the apparent lapse in custody of the body nor the change in its condition.

Furthermore, White said he is uncomfortable with the idea of establishing time of death by using sperm evidence, which he called fairly unreliable. "I don't know that that is necessarily helpful," he said. "There may be rules of thumb, but they are never very precise. There have been documented cases where you can recognize the spermatozoa in bodies that have been dead for days." As for the anal dilation -- that too, White said, is not in itself evidence that Stites was sodomized at all, let alone at the time of her death. "I think that may be a mistake," he said. "The anus relaxes after death and it opens up, up to 11é2 inches in diameter." Bayardo testified that dilation is typical after death, but said it doesn't usually happen until days later. White disagrees. "Muscles relax," he said, "and the anus will dilate considerably." In short, in White's opinion, there may have been no evidence of rape at all -- yet that theory of the crime was central to the prosecution's case, and additional cause for capital charges.

White said that other evidence should have been fully investigated and apparently was not. For example, on the body were a number of what Bayardo called "burns" -- five in all -- some of which in his autopsy Bayardo considered "near third-degree" and White says are extremely odd. Bayardo testified that the burns could have been caused by Stites' body lying in the sun all day before she was found.

White disagrees. "Those are very peculiar marks, that have not been explained," he said. White said he believes the burns are post-mortem, but does not believe they could have been caused solely by exposure to the sun, least of all the most severe, found underneath Stites' left breast -- especially considering it was covered by the bra she was wearing.

White's reaction to the medical testimony coincides with the opinion of Reed's first attorney, Jimmy Brown, who said there was yet another piece of evidence that he never quite understood -- yet one that defense attorneys also never mentioned at trial. When Stites was found, her fingernails were cut to the quick, roughly and not filed. Indeed, Bayardo told investigators on April 24 that the nails were cut too closely to allow the removal of any trace evidence -- evidence that might have revealed or confirmed the identity of Stites' attacker.

Brown believes the fingernail evidence points away from Reed as a suspect. "Either you're smart all the way through, or you're stupid all the way through, and Rodney's stupid all the way through," Brown said. "He didn't use a condom, but he carried nail clippers to cut the fingernails down to the quick?" Brown is not alone in his assessment. Interviewed about the possible significance of the cut fingernails, famed former FBI profiler Clinton Van Zandt said it's the kind of evidence that could be a valuable clue. "It doesn't jibe for [Reed] to do that," he said. "If you try to remove [evidence] from one place and not the other. That's exactly the issue."

But according to the court record, it was one more issue Reed's attorneys never raised.