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.
Ryan, Richard, and Ronald; mother Sandra; father Walter; cousin Chris Aldridge; and family supporter Norman Tarver).
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 (www.tdcj.state.tx.us), 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?
