TEXAS PREPARES TO EXECUTE RODNEY REED AMID A FLOOD OF NEW EVIDENCE POINTING TO HIS INNOCENCE
Jordan Smith
November 8 2019, 10:30 a.m.
DEKE PIERCE WAS wearing civilian clothes as he took to the lectern in a narrow press room inside the Texas Capitol in Austin last month, but it was still obvious that he was a cop. He stood with his feet wide and his arms slightly away from his body, a stance molded by years in a uniform encumbered by heavy gear. He was there to make an extraordinary announcement: He and 12 other members of law enforcement with more than 250 years of combined experience had filed a friend-of-the-court brief with the U.S. Supreme Court in favor of a Texas death row prisoner named Rodney Reed, slated for execution on November 20.
“We each care deeply about the criminal justice system and the rule of law. While that often means holding wrongdoers accountable, it is the equally important goal of the criminal justice system to avoid punishing the innocent,” Pierce told a group of reporters. “Not only would moving forward with Mr. Reed’s execution be cruel and immoral, it would also undermine the rule of law and the legitimacy of the very system we as law enforcement officers swore to uphold.”
Their brief argues that Reed’s conviction was tainted by common problems in law enforcement — forensic errors, “weak facts,” tunnel vision, and “community pressure that can distort an investigation.” The officers argue that in this case there is “uniquely compelling” evidence that Reed is innocent.
Pierce and his fellow officers join an increasing number of high-profile voices calling for a stay of execution and a thorough review of Reed’s case as a stream of new witnesses continue to come forward with revelations that cast doubt on Reed’s conviction; there is one who now says another suspect confessed to the crime that put Reed on death row. Reed’s lawyers, including his long-time attorney Bryce Benjet of the Innocence Project, have asked various courts to intervene, among them the U.S. Supreme Court. Those actions remain pending as the clock ticks down toward the execution date.
While Pierce and his colleagues understand “as well as anyone the need for finality in criminal cases,” they wrote, where “there is a significant risk of executing an innocent man, that need for finality must yield to the needs of justice.”
18 Years on the Case
Rodney Reed was convicted and sentenced to die in 1998 for the rape and murder of 19-year-old Stacey Stites two years earlier. On April 23, 1996, Stites was found dead, her body dumped on the side of a country road outside of Bastrop, a small town roughly a half-hour east of Austin. She was partially clothed and lying face up, her arms above her head. Marks on her neck led investigators to conclude that she’d been strangled with a length of braided leather belt, a piece of which was left nearby. Sperm was collected from inside her.
The murder went unsolved for nearly a year before law enforcement officers, apparently acting on a hunch, tested the recovered DNA against 29-year-old Reed. It matched and formed the basis of the prosecution’s case. No other evidence tied Reed to the murder. The DNA was the “Cinderella’s slipper,” prosecutors argued at trial.
When he was initially questioned by police, Reed denied knowing Stites, but soon admitted to having an affair with her, which would explain the presence of his DNA; the two had sex just days before Stites was found dead, he said.
It’s hardly surprising that Reed wasn’t immediately forthcoming. The relationship would have been a risky one in small-town Texas, even in the mid-1990s: Reed is black, and Stites was white and engaged to a man named Jimmy Fennell, a white cop in a neighboring town.
At trial, Reed had various witnesses lined up who could testify to the relationship, but most weren’t called, seemingly because they were related to Reed. Those who did testify weren’t particularly effective: One woman referred to Stites as “Stephanie” when recounting meeting her at the Reed family’s Bastrop home. Among the witnesses who weren’t called were at least two who said they knew about the affair and that Fennell had found out about it and threatened Reed.
Over the last 18 years, I’ve written dozens of times about Reed’s case. It was clear early on that it had serious problems and that Reed’s conviction left open a number of questions about what happened to Stites and why. As the years have passed, the case has become even more disturbing. There is medical and forensic evidence that has been debunked. There are witnesses — including within Stites’s family — who have come forward to say they were aware of the relationship. And then there’s Fennell. There’s been a lot of troubling information about him, too, including from law enforcement officers disturbed by his behavior both before and after Stites’s murder. Some of that information should have been made available to defense lawyers before Reed’s trial but wasn’t.
And then there are the courts, crucially including Texas’s Court of Criminal Appeals, which has repeatedly demonstrated a results-oriented willful ignorance in the face of mounting evidence challenging the conviction.
Bastrop County District Court Judge Doug Shaver listens to arguments from Rodney Reed’s attorney Bryce Benjet, left, and Assistant Attorney General Matthew Ottoway, right, during a hearing on Oct. 10, 2017.
A Suspicious Timeline
From the beginning, the state’s theory of Stites’s murder was a problem. On the day she died, Stites was slated to work at 3:30 a.m. at a Bastrop grocery store. She was living in the nearby town of Giddings, about 30 minutes northeast of Bastrop, in an apartment she shared with Fennell, who was a cop there. She never made it to work. Several hours later, Fennell’s pickup truck, which Stites allegedly drove to work that morning, was found in the parking lot of Bastrop High School. Her body was found that afternoon, several miles out of town.
Based on this set of facts, the state came up with a theory of her death that hinged on Reed’s DNA being the result of a stranger encounter: Stites left the apartment sometime around 3 a.m., driving toward Bastrop. Along the way, Reed, on foot, somehow stopped her and attacked her. He raped and strangled her and dumped her body before driving into town where he parked Fennell’s truck at the school before walking away.
As a practical matter, this never made much sense to me. How would a man on foot overcome a woman driving along a highway? Even if she were to come to a stoplight, it’s not as though she couldn’t drive through it — after all, it was 3 a.m. And if there was traffic at that hour, it would seem even less likely that he could pull off such a feat.
The timeline underpinning the state’s theory was provided by Fennell. He wasn’t awake when Stites got up for work, he said, but she would have left around 3 a.m. or so. He said that he and Stites had been home alone all evening. Yet the police never sought to search their Giddings apartment, even though it was the last place she was seen alive.
Despite that inexplicable oversight, reading the police reports and notes related to the case, you can see that early on, Fennell was a suspect — members of Stites’s family even penned a list of concerns about his behavior at the time. He was interrogated several times by police, exchanges that he characterized in trial testimony as abusive “from day one.”
That Fennell was originally a suspect is important because investigators knew that he hadn’t contributed the DNA evidence. In other words, at least early on, the DNA wasn’t considered the lynchpin of the case. Nonetheless, once they matched the DNA to Reed, they dropped Fennell as a suspect. And that’s a problem, Pierce and the other law enforcement officers say. It suggests that detectives suffered from tunnel vision, “to which all law enforcement officers are susceptible,” they wrote in their brief to the Supreme Court. “This phenomenon does not depend on any bad faith or incompetence of the officers involved. Rather, it is a result of ordinary cognitive bias, that can make even experienced, well-intentioned officers fixate on a theory of the case that, from an objective perspective, does not hold up.”
By Fennell’s own account, Stites died while she was at home alone with him.
“In particular, the pretrial investigation shows that police did not believe the forensic evidence exonerated Mr. Fennell until after Mr. Reed became a suspect,” they continued. “Only after Mr. Reed was identified as the source of an intimate sample did police consider the forensic evidence dispositive of guilt.”
In fact, additional forensic evidence pointed toward Fennell. Fingerprints lifted from his pickup truck — the one Reed supposedly drove after hijacking Stites — matched only Stites and Fennell. It’s hard to imagine that Reed would have tried to hide his identity by wiping his prints from the truck while leaving his DNA inside Stites.
As it turned out, there was also a problem with that DNA sample — not with its identification of Reed, but with what the state said it meant about Stites’s time of death. According to state witnesses, the fact that three intact spermatozoa were recovered from Stites meant that she’d had sex no more than about 24 hours prior to death.
Taken at face value, along with Fennell’s insistence that he was home with Stites the night before she was murdered, it would seem that the only conclusion was that Stites had sex just before she was killed. “We know, from the credible evidence, that [sperm] doesn’t hang around for days on end. We know from the credible evidence that that tells you that that sperm got in that girl’s body within 24 hours” of when the evidence was collected, prosecutors told the jury at Reed’s trial. “Which is when? On her way to work.”
I always found this suspicious because it was so oddly specific. Even back then, it sounded like junk science. Reed’s trial lawyers failed to call their own experts, so in 2002, I asked a Texas medical examiner unconnected to the case to review the evidence. He was uncomfortable with the state basing the timeline on sperm evidence, which, he told me, is “never very precise.”
In the intervening years, a number of noted forensic pathologists have agreed that the state’s conclusion lacked scientific support. Even the medical examiner who conducted Stites’s autopsy and had agreed with the state’s truncated timeline at Reed’s trial recanted his testimony. In 2018, both a state crime lab and a private DNA lab walked back the testimony of their employees who had been witnesses at Reed’s trial, noting that their assertions that the sperm had to be deposited close to Stites’s time of death were not supported and were in “error.”
There is another glaring issue for the medical experts who have reviewed the case: The state’s timeline for Stites’s murder was off — by hours. According to the pathologists, changes to Stites’s body at the time it was found demonstrated that she’d been killed before midnight and then dumped in the woods the following morning, meaning, by Fennell’s own account, Stites died while she was at home alone with him.
After death, blood no longer circulates and gravity causes it to pool under the skin in the lowest parts of the body, leading to dark patches that resemble bruising, known as post-mortem lividity. When Stites’s body was found, she was lying face up, yet the front of her body showed clear signs of lividity — on her face, right arm and hand, and chest. Since lividity takes at least four hours to set, the pathologists have agreed that this meant that Stites was killed and left in a position where she was slumped forward, one arm outstretched, for at least four hours before her body was dumped.
Jimmy Fennell, left, with his lawyer Robert Phillips after Judge Burt Carnes denied Fennell’s plea agreement and set a jury trial for an unrelated charge in June 2008.
Something I Will Never Forget
This brings us back to Fennell.
In the early stages of the investigation into Stites’s murder, Fennell was repeatedly questioned by police. And he was twice given a polygraph exam; both times he failed, including when asked if he’d strangled Stites. Polygraph exams are notoriously unreliable and are not admissible as evidence in court. Still, at that point, Fennell refused to cooperate further with detectives and invoked his Fifth Amendment right against self-incrimination.
By the time Reed’s trial rolled around, Fennell had changed his tune and took the stand as a witness for the prosecution. He testified that he and Stites got along well and had no “ongoing conflicts.” On April 22, 1996, he got off work around 2 p.m. Later, he said he went to coach a Little League team. He got home around 8 p.m. or so, and he and Stites spent the rest of the evening in their upstairs apartment. They were both “in good spirits.” He said that they discussed him driving her to work in the morning, but ultimately agreed that she would go alone. She went to bed around 9 p.m., and he stayed up to watch the news.
Prosecutors emphasized to the jury that Fennell’s story was consistent with their theory of the crime. “It’s important to note that nobody could ever find anything inconsistent with what he told you. Nobody,” said Lisa Tanner, a Texas assistant attorney general.
But that’s not true. In a 2016 interview with CNN’s “Death Row Stories,” Bastrop County sheriff’s deputy Curtis Davis, a friend of Fennell’s, recalled a conversation he had with Fennell shortly after he was told that Stites was missing. According to Davis, on April 23, 1996, Fennell said that he’d stayed out drinking after Little League the night before and was not home with Stites as he’d claimed. “Him and a couple of other police officers, I believe … had consumed a little bit of alcohol,” he said. “I won’t say they were drunk ’cause that’s not what he said, but they had drank a few beers after practice.”
In a 2017 court hearing, Davis confirmed this story. Fennell refused to testify and instead offered a written declaration saying that if he was called to the stand, he would invoke his Fifth Amendment right and refuse to answer questions. He said he stood by his testimony at Reed’s trial.
This is far from the only post-trial revelation that has come out about Fennell, and certainly not the most recent or disturbing. In fact, in October, two additional law enforcement officers who knew Fennell came forward with explosive accounts.
“Jimmy was directing his comment at Ms. Stites’s body. I was completely shocked.”
Continued below
Jordan Smith
November 8 2019, 10:30 a.m.
DEKE PIERCE WAS wearing civilian clothes as he took to the lectern in a narrow press room inside the Texas Capitol in Austin last month, but it was still obvious that he was a cop. He stood with his feet wide and his arms slightly away from his body, a stance molded by years in a uniform encumbered by heavy gear. He was there to make an extraordinary announcement: He and 12 other members of law enforcement with more than 250 years of combined experience had filed a friend-of-the-court brief with the U.S. Supreme Court in favor of a Texas death row prisoner named Rodney Reed, slated for execution on November 20.
“We each care deeply about the criminal justice system and the rule of law. While that often means holding wrongdoers accountable, it is the equally important goal of the criminal justice system to avoid punishing the innocent,” Pierce told a group of reporters. “Not only would moving forward with Mr. Reed’s execution be cruel and immoral, it would also undermine the rule of law and the legitimacy of the very system we as law enforcement officers swore to uphold.”
Their brief argues that Reed’s conviction was tainted by common problems in law enforcement — forensic errors, “weak facts,” tunnel vision, and “community pressure that can distort an investigation.” The officers argue that in this case there is “uniquely compelling” evidence that Reed is innocent.
Pierce and his fellow officers join an increasing number of high-profile voices calling for a stay of execution and a thorough review of Reed’s case as a stream of new witnesses continue to come forward with revelations that cast doubt on Reed’s conviction; there is one who now says another suspect confessed to the crime that put Reed on death row. Reed’s lawyers, including his long-time attorney Bryce Benjet of the Innocence Project, have asked various courts to intervene, among them the U.S. Supreme Court. Those actions remain pending as the clock ticks down toward the execution date.
While Pierce and his colleagues understand “as well as anyone the need for finality in criminal cases,” they wrote, where “there is a significant risk of executing an innocent man, that need for finality must yield to the needs of justice.”
18 Years on the Case
Rodney Reed was convicted and sentenced to die in 1998 for the rape and murder of 19-year-old Stacey Stites two years earlier. On April 23, 1996, Stites was found dead, her body dumped on the side of a country road outside of Bastrop, a small town roughly a half-hour east of Austin. She was partially clothed and lying face up, her arms above her head. Marks on her neck led investigators to conclude that she’d been strangled with a length of braided leather belt, a piece of which was left nearby. Sperm was collected from inside her.
The murder went unsolved for nearly a year before law enforcement officers, apparently acting on a hunch, tested the recovered DNA against 29-year-old Reed. It matched and formed the basis of the prosecution’s case. No other evidence tied Reed to the murder. The DNA was the “Cinderella’s slipper,” prosecutors argued at trial.
When he was initially questioned by police, Reed denied knowing Stites, but soon admitted to having an affair with her, which would explain the presence of his DNA; the two had sex just days before Stites was found dead, he said.
It’s hardly surprising that Reed wasn’t immediately forthcoming. The relationship would have been a risky one in small-town Texas, even in the mid-1990s: Reed is black, and Stites was white and engaged to a man named Jimmy Fennell, a white cop in a neighboring town.
At trial, Reed had various witnesses lined up who could testify to the relationship, but most weren’t called, seemingly because they were related to Reed. Those who did testify weren’t particularly effective: One woman referred to Stites as “Stephanie” when recounting meeting her at the Reed family’s Bastrop home. Among the witnesses who weren’t called were at least two who said they knew about the affair and that Fennell had found out about it and threatened Reed.
Over the last 18 years, I’ve written dozens of times about Reed’s case. It was clear early on that it had serious problems and that Reed’s conviction left open a number of questions about what happened to Stites and why. As the years have passed, the case has become even more disturbing. There is medical and forensic evidence that has been debunked. There are witnesses — including within Stites’s family — who have come forward to say they were aware of the relationship. And then there’s Fennell. There’s been a lot of troubling information about him, too, including from law enforcement officers disturbed by his behavior both before and after Stites’s murder. Some of that information should have been made available to defense lawyers before Reed’s trial but wasn’t.
And then there are the courts, crucially including Texas’s Court of Criminal Appeals, which has repeatedly demonstrated a results-oriented willful ignorance in the face of mounting evidence challenging the conviction.
Bastrop County District Court Judge Doug Shaver listens to arguments from Rodney Reed’s attorney Bryce Benjet, left, and Assistant Attorney General Matthew Ottoway, right, during a hearing on Oct. 10, 2017.
A Suspicious Timeline
From the beginning, the state’s theory of Stites’s murder was a problem. On the day she died, Stites was slated to work at 3:30 a.m. at a Bastrop grocery store. She was living in the nearby town of Giddings, about 30 minutes northeast of Bastrop, in an apartment she shared with Fennell, who was a cop there. She never made it to work. Several hours later, Fennell’s pickup truck, which Stites allegedly drove to work that morning, was found in the parking lot of Bastrop High School. Her body was found that afternoon, several miles out of town.
Based on this set of facts, the state came up with a theory of her death that hinged on Reed’s DNA being the result of a stranger encounter: Stites left the apartment sometime around 3 a.m., driving toward Bastrop. Along the way, Reed, on foot, somehow stopped her and attacked her. He raped and strangled her and dumped her body before driving into town where he parked Fennell’s truck at the school before walking away.
As a practical matter, this never made much sense to me. How would a man on foot overcome a woman driving along a highway? Even if she were to come to a stoplight, it’s not as though she couldn’t drive through it — after all, it was 3 a.m. And if there was traffic at that hour, it would seem even less likely that he could pull off such a feat.
The timeline underpinning the state’s theory was provided by Fennell. He wasn’t awake when Stites got up for work, he said, but she would have left around 3 a.m. or so. He said that he and Stites had been home alone all evening. Yet the police never sought to search their Giddings apartment, even though it was the last place she was seen alive.
Despite that inexplicable oversight, reading the police reports and notes related to the case, you can see that early on, Fennell was a suspect — members of Stites’s family even penned a list of concerns about his behavior at the time. He was interrogated several times by police, exchanges that he characterized in trial testimony as abusive “from day one.”
That Fennell was originally a suspect is important because investigators knew that he hadn’t contributed the DNA evidence. In other words, at least early on, the DNA wasn’t considered the lynchpin of the case. Nonetheless, once they matched the DNA to Reed, they dropped Fennell as a suspect. And that’s a problem, Pierce and the other law enforcement officers say. It suggests that detectives suffered from tunnel vision, “to which all law enforcement officers are susceptible,” they wrote in their brief to the Supreme Court. “This phenomenon does not depend on any bad faith or incompetence of the officers involved. Rather, it is a result of ordinary cognitive bias, that can make even experienced, well-intentioned officers fixate on a theory of the case that, from an objective perspective, does not hold up.”
By Fennell’s own account, Stites died while she was at home alone with him.
“In particular, the pretrial investigation shows that police did not believe the forensic evidence exonerated Mr. Fennell until after Mr. Reed became a suspect,” they continued. “Only after Mr. Reed was identified as the source of an intimate sample did police consider the forensic evidence dispositive of guilt.”
In fact, additional forensic evidence pointed toward Fennell. Fingerprints lifted from his pickup truck — the one Reed supposedly drove after hijacking Stites — matched only Stites and Fennell. It’s hard to imagine that Reed would have tried to hide his identity by wiping his prints from the truck while leaving his DNA inside Stites.
As it turned out, there was also a problem with that DNA sample — not with its identification of Reed, but with what the state said it meant about Stites’s time of death. According to state witnesses, the fact that three intact spermatozoa were recovered from Stites meant that she’d had sex no more than about 24 hours prior to death.
Taken at face value, along with Fennell’s insistence that he was home with Stites the night before she was murdered, it would seem that the only conclusion was that Stites had sex just before she was killed. “We know, from the credible evidence, that [sperm] doesn’t hang around for days on end. We know from the credible evidence that that tells you that that sperm got in that girl’s body within 24 hours” of when the evidence was collected, prosecutors told the jury at Reed’s trial. “Which is when? On her way to work.”
I always found this suspicious because it was so oddly specific. Even back then, it sounded like junk science. Reed’s trial lawyers failed to call their own experts, so in 2002, I asked a Texas medical examiner unconnected to the case to review the evidence. He was uncomfortable with the state basing the timeline on sperm evidence, which, he told me, is “never very precise.”
In the intervening years, a number of noted forensic pathologists have agreed that the state’s conclusion lacked scientific support. Even the medical examiner who conducted Stites’s autopsy and had agreed with the state’s truncated timeline at Reed’s trial recanted his testimony. In 2018, both a state crime lab and a private DNA lab walked back the testimony of their employees who had been witnesses at Reed’s trial, noting that their assertions that the sperm had to be deposited close to Stites’s time of death were not supported and were in “error.”
There is another glaring issue for the medical experts who have reviewed the case: The state’s timeline for Stites’s murder was off — by hours. According to the pathologists, changes to Stites’s body at the time it was found demonstrated that she’d been killed before midnight and then dumped in the woods the following morning, meaning, by Fennell’s own account, Stites died while she was at home alone with him.
After death, blood no longer circulates and gravity causes it to pool under the skin in the lowest parts of the body, leading to dark patches that resemble bruising, known as post-mortem lividity. When Stites’s body was found, she was lying face up, yet the front of her body showed clear signs of lividity — on her face, right arm and hand, and chest. Since lividity takes at least four hours to set, the pathologists have agreed that this meant that Stites was killed and left in a position where she was slumped forward, one arm outstretched, for at least four hours before her body was dumped.
Jimmy Fennell, left, with his lawyer Robert Phillips after Judge Burt Carnes denied Fennell’s plea agreement and set a jury trial for an unrelated charge in June 2008.
Something I Will Never Forget
This brings us back to Fennell.
In the early stages of the investigation into Stites’s murder, Fennell was repeatedly questioned by police. And he was twice given a polygraph exam; both times he failed, including when asked if he’d strangled Stites. Polygraph exams are notoriously unreliable and are not admissible as evidence in court. Still, at that point, Fennell refused to cooperate further with detectives and invoked his Fifth Amendment right against self-incrimination.
By the time Reed’s trial rolled around, Fennell had changed his tune and took the stand as a witness for the prosecution. He testified that he and Stites got along well and had no “ongoing conflicts.” On April 22, 1996, he got off work around 2 p.m. Later, he said he went to coach a Little League team. He got home around 8 p.m. or so, and he and Stites spent the rest of the evening in their upstairs apartment. They were both “in good spirits.” He said that they discussed him driving her to work in the morning, but ultimately agreed that she would go alone. She went to bed around 9 p.m., and he stayed up to watch the news.
Prosecutors emphasized to the jury that Fennell’s story was consistent with their theory of the crime. “It’s important to note that nobody could ever find anything inconsistent with what he told you. Nobody,” said Lisa Tanner, a Texas assistant attorney general.
But that’s not true. In a 2016 interview with CNN’s “Death Row Stories,” Bastrop County sheriff’s deputy Curtis Davis, a friend of Fennell’s, recalled a conversation he had with Fennell shortly after he was told that Stites was missing. According to Davis, on April 23, 1996, Fennell said that he’d stayed out drinking after Little League the night before and was not home with Stites as he’d claimed. “Him and a couple of other police officers, I believe … had consumed a little bit of alcohol,” he said. “I won’t say they were drunk ’cause that’s not what he said, but they had drank a few beers after practice.”
In a 2017 court hearing, Davis confirmed this story. Fennell refused to testify and instead offered a written declaration saying that if he was called to the stand, he would invoke his Fifth Amendment right and refuse to answer questions. He said he stood by his testimony at Reed’s trial.
This is far from the only post-trial revelation that has come out about Fennell, and certainly not the most recent or disturbing. In fact, in October, two additional law enforcement officers who knew Fennell came forward with explosive accounts.
“Jimmy was directing his comment at Ms. Stites’s body. I was completely shocked.”
Continued below
