Rodney Reed has been on Texas Death Row
row since 1998. He was convicted for the 1996 murder of Stacey
Stites in the small town of Bastrop. Stacey’s brutal murder struck
at the very heart of the community, not only for its brutality,
but for the sinister chain of events it would set into motion.
Rodney’s case is a troubling mixture of prosecutoral misconduct,
police corruption, poor defense, and institutional racism.
Evidence of Rodney’s innocence is overwhelming and the need for a
new trial is indisputable.
Rodney was convicted on the basis of one piece
of evidence. His DNA was found in a semen sample taken from
Stacey’s body at the scene of the crime. Conventional wisdom would
suggest such evidence is the nail in the coffin of any capital
murder case, not least of all one including an alleged rape.
However, Rodney’s court-appointed attorneys (two African American
lawyers afraid to spend nights in a small Texas town like Bastrop)
neglected to provide witnesses who would testify that Rodney and
Stacey were engaged in a sexual relationship at the time of her
tragic death. No other evidence in the case connected Rodney to
Stacey or the crime scene. Yet, Rodney, his family, and his
supporters would soon learn that evidence of a Black man engaged
in sexual relationship with a white woman in a small Texas town
would be more than enough to frame him for murder and send him to
Documentary film - Stave vs. Reed
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.
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
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
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
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.
New claims in
Bastrop muder appeal
Rodney Reed's lawyers have cited new allegations of sexual
misconduct against Jimmy Fennel in their latest appeal.
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
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
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."
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
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.
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
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.
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.
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
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."
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
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.
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.
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.
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
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."
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.
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.
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.)
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
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?"
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."
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.
old lead, investigators soon matched Reed's DNA to that found in
Stites' body, and less than a month later Reed was charged with
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 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
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
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.
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."
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.
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
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."
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
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
"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.
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.)
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."
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
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
"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
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
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