Appeals Court Weighs Plea to 'Correct Miscarriage of Justice'

Nearly 10 years after Rodney Reed was convicted of murder and condemned to die, the Texas Court of Criminal Appeals now is tasked with deciding whether he should receive a new trial. Reed's lawyers – including former CCA Judge Morris Overstreet and former Texas Defender Service attorney Bryce Benjet – argue that if Reed's Bastrop jury had known of the available evidence in the case, it would not have convicted Reed of the 1996 murder of Stacey Stites. "If a jury had the opportunity to review all of the evidence, they would've made a different decision," Overstreet told reporters outside the CCA building on March 20. "This court can do what it needs to do to correct a miscarriage of justice."

Reed was convicted of killing 19-year-old Stites, a Giddings resident, as she drove to work for an early-morning shift at the Bastrop HEB on April 23, 1996. Stites was strangled with a belt and her body dumped alongside a country road just north of town; the red pickup truck she was driving – which belonged to her fiancé, Jimmy Fennell, then a Giddings Police officer – was found in the parking lot of Bastrop High School. Although DNA evidence on Stites' body eventually led investigators to Reed, who acknowledged having an affair with Stites, no other evidence tied Reed to the crime. Reed's supporters argue that Fennell is a far more likely suspect because he was upset about Reed and Stites' relationship. In fact, although the state claims that Fennell was initially a suspect, documents in the case reflect that police never seriously pursued him: They failed to process fully for evidence his pickup truck and instead returned it to him within days of the murder. Moreover, they never searched the apartment Stites and Fennell shared, even though it was the last place Stites was known to be alive. (Questions about Fennell's credibility and possible involvement in the murder have increased since his indictment late last year on charges of aggravated sexual assault, kidnapping, and official oppression in connection with a woman he detained while on duty as a Georgetown Police officer. Reed's supporters view the current charges as eerily similar to the circumstances surrounding Stites' murder. To date, however, the courts have not been able to consider them as evidence in Reed's favor.)

With respect to Reed's appeal, the central argument turns on whether prosecutors withheld exculpatory information from Reed's trial defenders – including DNA tests from two beer cans found near Stites' body, from which Fennell's neighbor and Giddings Police Department colleague could not be excluded as a contributor. That evidence would be key to rebutting the state's contention that Fennell could not have murdered Stites because he would have no way to make the round-trip from Giddings without driving his pickup. Reed's attorneys say that it suggests that Fennell might have had help. They also claim that former Bastrop District Attorney Charles Penick knowingly withheld information about a possible witness, Martha Barnett, who told her attorney, former Lee Co. Attorney Steven Keng, she saw Stites and Fennell arguing in a parking lot the morning Stites was killed. At a 2006 hearing before District Judge Reva Towslee Corbett, Keng testified that he offered this information to Penick but that Penick rejected it. "His response was to laugh and to tell me he didn't need any more witnesses, that he didn't want to hear it," Keng testified.

Towslee Corbett ultimately ruled that the testimony presented in Reed's favor was not credible. Further, she opined, the testimony of Barnett and Keng, along with that of Mary Black­well – a police officer who said she'd heard Fennell boast that he would strangle Stites as punishment for infidelity – was not likely to have changed a jury's mind about Reed's guilt. Reed failed "to demonstrate that his conviction was unlawfully obtained," Towslee Corbett concluded in recommending that the CCA deny Reed's bid for a new trial. (Reed's supporters believe Towslee Corbett should have recused herself from the case because she is the daughter of former District Judge Harold Towslee, who presided over Reed's initial trial.)

Certainly, it wouldn't be unusual for Texas' highest criminal court to simply rubber-stamp the lower court's findings in the case and push it into federal court. Instead, the CCA heard oral arguments, asking the lawyers, in part, whether they are legally able to depart from Towslee Corbett's findings. To Overstreet and Benjet, the answer is clearly yes. The AG's position, Benjet argues, is only that the growing number of witnesses contradicting the state's case are simply lying. "That the State has filtered these assertions of credibility though the signature of ... Towslee Corbett ... does not absolve [the CCA] of its duty to independently review the record and enter the first and final judgment in the case," Benjet wrote in a brief. In other words, Benjet told the judges last week, the CCA should not "blindly defer" to the lower court's conclusions, especially where the court has "reason to question the reliability of those findings," and where Towslee Corbett's findings are "not supported" by the record. And, he said, it is clear that Towslee Corbett stepped out of line in making assertions that are not supported by the facts.

On the other side, Assistant Attorney General Tina Miranda argued that the court should defer to Towslee Corbett's findings and, further, that in deciding whether Reed should be granted a new trial, the court must consider all evidence – including extraneous allegations that Reed committed several sexual assaults, even though he was acquitted of one charge and was never tried on any additional charges. This information is likely inadmissible at trial. Miranda denied that there is any basis for Reed's contention that Fennell was a far more likely suspect or that Reed was having a consensual relationship with Stites before her death. There are simply "no reliable witnesses that can attest to that secret affair," she told the court. (For more on the case, see "Who Killed Stacey Stites?" May 24, 2002.)

Although the court has no deadline for deciding the case, court watchers anticipate a ruling within the next six months. If the court denies Reed relief, the case will again move to federal district court for consideration.