Breaking the Chain
Troubling Questions about evidence in Bastrop County murder case
On Feb. 13, the state Court of Criminal Appeals denied the writ of habeas corpus appeal of 34-year-old Rodney Reed, convicted and sentenced to death in 1998 for the 1996 murder of 19-year-old Stacey Stites. "Based upon the trial court's findings and conclusions and our own review, the relief sought is denied," the court wrote. But the ruling fails to quell serious questions that remain regarding Reed's guilt or innocence. Encouraged by the ongoing private investigation of a Bastrop County volunteer citizen sleuth, David Fisher, Reed's supporters charge that not only was the initial investigation into Stites' murder mishandled, but that much of the evidence obtained by investigators was tainted by serious breaches in the chain of custody -- crucially important in investigative procedure to ensure the purity and accuracy of the evidence.
The case files suggest that at the very least, Rodney Reed received an inadequate if not incompetent defense. More importantly, a pattern of apparent police or prosecutorial mishandling of evidence in the case suggests that Reed's court-appointed capital defense attorneys were severely handicapped at trial. If Reed is in fact innocent, the alternative possibilities are very troubling: that Bastrop County investigators bungled the initial investigation because they were reluctant to consider other suspects, especially Giddings police officer Jimmy Fennell Jr.; that evidence that might have cleared Rodney Reed was either ignored or not provided to the defense; or even that Reed may have been framed by the authorities for the murder of Stacey Stites.
According to documents discovered by Fisher and obtained by the Chronicle, it appears that the chain of custody was broken for DNA evidence that could have bolstered Reed's claim of innocence and created reasonable doubt in jurors' minds. Specifically, shipping labels that the Texas Dept. of Public Safety says were used to ship blood and other evidence to California for DNA testing by the defense's DNA expert do not match records kept by the shipping company, Airborne Express. Further, according to court documents, there is no record that the defense expert ever tested the DNA samples in question.
The questions about the blood evidence are among many that persist about the nature of the prosecution's case against Rodney Reed.
On April 23, 1996, Stacey Stites was reported missing after failing to show up for work at the Bastrop HEB. The pickup truck she was driving, which belonged to her fiancé Jimmy Fennell Jr., at the time a Giddings Police officer, was found in the parking lot of Bastrop High. Her body was discovered that afternoon near a county road. Investigators considered more than 28 suspects, but the case was unsolved for nearly a year -- until DNA from semen found in Stites' body was matched to Reed. No other evidence collected at the scene, such as fingerprints or hair, matched Reed, but prosecutors argued that Reed abducted, raped, and strangled Stites. The defense countered that in fact Reed had been having an affair with Stites and that someone else -- possibly Fennell -- had actually committed the crime.
The Unexamined Evidence
The shipping labels and DNA now in question surfaced as the result of the battle over a May 13, 1998 DPS lab report, which Reed's attorneys say was never provided to them during Reed's 1998 trial. It was Reed himself, in his cell in the Polunsky Unit in Livingston (which houses Texas' death row inmates), who originally discovered the lab report, attached as an exhibit to the state's response to his "habeas appeal" -- an appeal to the higher state courts to reconsider the outcome of his original trial. "I saw that the first day I got the appeal. I already knew the state's twisted theory of this case, and I thought, what's this? I thought, why hadn't Barbisch [Bill Barbisch, Reed's habeas attorney] ever mentioned this to me?" Reed said in a death row interview. "It incriminates other suspects. And we'd never seen this before."
The May 13 DNA report sought to determine the origin of DNA found on two beer cans found near Stites' body. The samples from the cans did not match Reed's DNA, but DPS serologist Wilson H. Young found that the samples could not exclude two other suspects: Giddings Police officer David Hall -- a friend and neighbor of Fennell's -- and Bastrop Police officer Ed Salmela, the original investigator of Stites' murder. During a March 2001 evidentiary hearing before the original court, Reed's family sought to address the issue of why the defense had not been provided this information, but after testimony from both sides, Judge Harold Townslee finally ruled in October that Reed's attorneys failed to demonstrate that the additional evidence would have affected the trial outcome. But Reed insists this evidence could have had a profound effect on the jurors, "since the whole case turns on DNA," he said.
David Fisher kept digging -- and may have hit pay dirt. Fisher, who began looking into the case at the request of a Smithville reporter, believes not only that the May 13 report was intentionally hidden from the defense, but also that the state never provided blood samples from Hall and Salmela to defense experts for testing. On Jan. 11, 2002, the DPS provided Fisher with copies of two Airborne Express shipping labels which were purportedly affixed to packages sent on May 4 and May 6, 1998, containing blood samples and other evidence for DNA testing by the defense. However, according to Airborne Express records obtained by the Chronicle, the numbered shipping labels in question were never mailed from DPS. In fact, the records indicate that the labels in question weren't used until Sept. 10, 1999 -- at which time they were mailed from Dell Computers to Wal-Mart Stores headquarters in Bentonville, Ark.
According to a representative of Airborne Express, there is "a one in a zillion" chance that the same shipping label numbers would be "recycled" back to the same origin city -- but such an unusual circumstance would severely hamper Airborne's own record-keeping. The Airborne representative, who declined to provide her name, also said that "hazardous" items, such as the blood DPS said they shipped, would have to be packaged with unique biohazard labels and special packaging. The labels provided by DPS do not bear any biohazard warnings. Asked about the apparent discrepancy in the shipping records, DPS spokeswoman Tela Mange said, "At this point this case is still under appeal, and so it's not appropriate for us to make any comments on this particular case."
The lead prosecutor in Reed's case, Lisa Tanner of the state Attorney General's Prosecutor Assistance Division, did not return phone calls requesting comment, and Attorney General spokesman Mike Viesca said the AG's office would not comment on the Reed case. But according to an affidavit provided by Tanner on March 14, 2001 and now in Reed's court files, whether she ever provided Reed's attorneys with copies of the May 13 lab report is of no consequence because copies of defense DNA expert Elizabeth Johnson's notes, that Tanner said she read, reflected that Johnson was able to exclude Hall and Salmela from being contributors of the DNA on the beer cans in question. "I did not make a copy of whatever page listed [Salmela and Hall's] DNA profiles," Tanner wrote. "Nonetheless, I have a clear recollection of reviewing her notes and realizing that Salmela and Hall were excluded." In a search of court documents, the Chronicle was unable to find copies of the notes Tanner references. Defense DNA expert Elizabeth Johnson said she could not recall whether she had received the samples in question or whether she had done any testing on them. She did say that the DPS sent for testing "everything we asked for." But since the defense attorneys say they never received the DPS lab report describing the DNA samples in question, it would appear that they never knew to ask for them.
But according to two other DNA experts, asked by the prosecution and defense to review the DPS reports regarding the beer can DNA for the March 2001 evidentiary hearing, only Salmela, and not Hall, could be excluded as being the DNA's contributor. Whether or not Hall -- or any other suspect -- could have been excluded was of prime importance to the defense, in order to support its contention that someone else had murdered Stites and then dumped her body, a claim Reed and his defenders still vociferously assert. Specifically, the Reed defense hoped to show that Fennell could have killed Stites and then had help in disposing of her body. Investigators said they eliminated Fennell as a suspect because they concluded he could not have returned to Giddings from Bastrop -- where Stacey's body and the pickup truck were found -- without the use of a car. Reed's supporters note that if Hall could be connected to the crime scene, the transportation question could be resolved.
Unfortunately, the questions of whether the DPS ever shipped the blood samples to the defense expert for testing, whether or not the defense ever tested them, whether or not Hall could have been excluded as the source of the DNA, and thus, whether or not Reed was denied access to possibly exculpatory evidence, may never be legally addressed. The portion of Reed's writ addressing the DNA questions was filed late by his appellate attorney, Bill Barbisch. As a result, that portion of the writ was not even considered by the appeals court. Barbisch did not return recent phone calls requesting comment, but in an interview last month he told the Chronicle he was not comfortable talking about Reed's case because he is attempting to have himself removed by the court as counsel of record.
'Welcome to Habeas Corpus'
The appeals court was firm. "Because this document was filed after the deadline provided for an initial application for habeas corpus ... thus, [we] have no authority to do anything other than dismiss this subsequent application as an abuse of the writ," the court wrote. "In dismissing the subsequent application, we also expressly reject all findings and conclusions related to this claim and deny any motions pending that relate to the claim." Because of the court's ruling, Reed -- whether guilty or innocent -- may never be able to get the legal system to respond to the lingering questions, including the possibility of suppressed evidence, that persist in the Stites murder case.
"This is called: 'Welcome to habeas corpus,'" said UT law professor Jordan Steiker, who finds the Reed case "very troublesome." "This [habeas rule] does create incredible problems with cases where there may be prosecutorial misconduct or claims of actual innocence," he said. "It also means that attorney errors, at any point [in the habeas process] will frustrate any chances down the line."
Steiker said that the discrepancy between the purported DPS mailing labels and the Airborne Express shipping records may cast a shadow on other evidence presented during Reed's trial. "The chain of custody is a requirement to establish the evidentiary value of the evidence," Steiker said. "In other words, if you break the chain, you don't have any authoritative way of linking the evidence to the crime."
The chain of custody of this particular DNA evidence is not the only troubling question in the Stites murder case, and not even the most serious. According to other evidence in the court records, questions about the chain of custody of Stites' body and other evidence from the crime scenes, as well as exculpatory evidence that bolstered Reed's assertion that he was having an affair with Stites, were never raised in court.
According to police reports, Stites' body was removed from the crime scene in Bastrop County -- just seven miles from the Bastrop city limits -- no later than 8:55pm on April 23, 1996. Yet the body was not checked into the Travis County Medical Examiner's office in Austin until 11pm that night -- more than two hours later. Normally, that trip should take no more than 45 minutes. According to copies of the examiner's log, the body was transported and signed in by a funeral home employee, and not a representative of the examiner's office or of law enforcement. The lapse in time wouldn't be so significant, except that photos of the body, taken at the crime scene and recently obtained by the Chronicle, do not visually coincide with photos taken later at the examiner's office. Specifically, the autopsy photos show what appear to be numerous wounds on Stites' forehead, shoulders, and chest -- wounds that are not present in the crime-scene photos, and which suggest that the body may have been at least mishandled during transport. But according to trial documents, neither of Reed's court-appointed trial attorneys, Lydia Clay-Jackson and Calvin Garvie, raised any questions about the apparent lapse in custody of Stites' body or the differences in its condition. (Clay-Jackson did not respond to numerous telephone calls seeking comment, and Garvie could not be reached.)
'We Don't Need Any Witnesses'
Further, according to court files and interviews with both Reed and his family, there are numerous affidavits from witnesses who claimed either to know about Reed's affair with Stites, who claim to have some knowledge that Hall had some connection to the crime, or who could have rebutted the state's claims that Reed had committed or attempted to commit other sexual assaults. Few of these witnesses were ever presented at trial, and only during the punishment phase of the trial. "I said, when are you going to call my witnesses?" Reed said he asked Garvie. "And [Garvie] said don't worry about it, and that made me feel like he was going to do something. Then at trial, again, I said, 'Where are my witnesses, and [Garvie said], 'We don't need any witnesses, we've got this thing beat.'"
In particular, Reed's family members say -- and documents provided to the Chronicle confirm -- a young Bastrop man, James Robertson, who had known both Reed and Stites in 1996, said that he knew of their affair and wanted to testify at Reed's trial. Reed and his parents say that, not only did Clay-Jackson and Garvie fail to call Robertson as a witness, but Reed's appellate attorney Barbisch failed to include the man's subsequent affidavit as part of Reed's direct appeal.
Since the Court of Criminal Appeals has rejected Reed's appeal, his family and supporters are uncertain what else they can do. David Fisher says he is still determined to find some relief for the Reeds, and he's preparing to return to the Public Integrity Unit of the Travis County District Attorney's Office and ask for an investigation of the apparent official malfeasance in Reed's case (see "Butt-inski," p.24).
Fisher may also have a new ally: Austin's State Sen. Gonzalo Barrientos. "The senator is willing to say, okay, there's something going on here," said Rachele Smith, Barrientos' legislative assistant. "He has been given information from different people that gives him pause [about the case] ... Any time there is alleged malfeasance or misconduct by any public official, state officer, or state employee, their unit has not only the authority but the obligation to look at it," Smith said. "The key is the senator will be standing over it. The senator is of the mindset that if nothing turns out from it, what have we lost?"