The Austin Chronicle

Reed Loses Another Appeal

By Jordan Smith, January 23, 2009, News

The Texas Court of Criminal Appeals on Jan. 14 again denied an appeal brought by death row inmate Rodney Reed, convicted of murdering 19-year-old Stacey Stites in Bastrop in 1996. According to the CCA opinion (unanimous but unsigned), defense evidence demonstrating that Stites' fiancé, former Georgetown Police Sgt. Jimmy Fennell, now in jail for assaulting a woman in his custody, had a "violent and abusive character" isn't enough to undermine Reed's conviction. In part, they say the defense hasn't demonstrated that this evidence couldn't have been discovered previously by Reed's defenders if they'd exercised "due diligence."

Reed was convicted and sentenced to die for murdering Stites, whose body was found dumped by the side of a county road in April 1996 after she'd failed to show up for work. DNA evidence found on Stites' body eventually led police to Reed, though no other physical evidence tied Reed to the murder, the truck, or the dump site. Reed maintains that his DNA was found on Stites because he was having a consensual sexual relationship with her – a relationship that Fennell found out about. Reed's supporters have long contended that Fennell, then a Giddings Police officer, was a far more likely suspect. (For more on the case, see "Who Killed Stacey Stites?" May 24, 2002.) Questions about Fennell's possible involvement have intensified since he pleaded guilty last September to kidnapping and improper sexual conduct with a person in his custody. He was sentenced to 10 years for those crimes.

In recent months, additional information about Fennell has made its way to Reed's defense attorneys, including Bryce Benjet, such as that from a woman Fennell dated shortly after Stites' murder who said in an affidavit that Fennell was "abusive, possessive, controlling, and extremely prejudiced toward African-Americans," according to Reed's appeal. When she broke it off with Fennell, he "stalked me for months," she wrote, driving by her house "night after night" and sitting, sometimes for hours, in his car outside her work. The woman filed a complaint with the police and said that she was told the police would "make sure he left me alone." That information was never made available to Reed's attorneys at trial, Benjet argues, but would have been valuable to use to challenge Fennell's testimony that he was not controlling of Stites. Additionally, Reed's defense has taken to the court evidence that Fennell harassed another woman in 2004 – after pulling her over for a "crooked license plate," he suggested she could get out of a ticket by performing a lap dance for him – and evidence taken from a MySpace page maintained by Fennell that "contained sexually explicit and violent images."

In all, though, the court maintains that this evidence is unpersuasive in establishing that Reed might actually be innocent. It appears the court is content to dismiss the evidence against Fennell because it involves his character and behavior – both of which are clearly questionable – and because that evidence doesn't explain the DNA found on Stites that matches Reed. "[O]ther than showing that Fennell has engaged in despicable and reprehensible conduct as an officer with the Georgetown Police Department," the court wrote of the lap dance incident, "the information does not exonerate Reed of Stacey's murder."

This is the second time in a month that the CCA has denied Reed's appeals, noting each time that Reed's attorneys have filed the new evidence "piecemeal." The court has failed to note, however, that the appeals containing the new evidence have been filed in succession precisely because the court required it to be done that way. "We filed a motion asking to supplement the record, and they said, 'No, file it in another writ,'" said Benjet. So the court's attitude now is rather confounding, he said.

But more disturbing, he argues, is a larger inconsistency he finds in the court's positions on the Reed case: In its first opinion, the court said "we didn't make enough of a case against Jimmy," he said; now, with more evidence before them, the court is still saying there isn't enough. "No matter how strong a case we had against Jimmy, because there is semen in the victim," Reed must be guilty. "It's clear that no amount of evidence will ever convince them. That is the remarkable thing."

Whether that is indeed the case remains to be seen. Benjet said he will file at least one more appeal with the CCA, with more information about Fennell that was recently revealed through the Texas Department of Public Safety investigation into the kidnapping and assault case against him – including additional allegations of stalking and sexual assault. The appeal must be filed first with the CCA before the Reed case can move into federal court.

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