The Austin Chronicle

Death Watch: Reed Appeal Rejected at 5th Circuit

Lawyers consider next move

By Jordan Smith, January 17, 2014, News

Just over a month after it considered oral arguments in the case, a three-judge panel of the 5th U.S. Circuit Court of Appeals on Jan. 10 rejected the latest appeal from Rodney Reed, on death row for the rape and murder of Stacey Stites.

Reed was convicted and sentenced to death for the kidnapping, rape, and murder of 19-year-old Stites, whose body was found by the side of a country road near Bastrop in 1996. DNA from semen found inside Stites connected her to Reed, though no other physical evidence from the scene or from inside the car she was driving when she was allegedly abducted, connected Reed to the crime. Reed claims the DNA was deposited more than a day before her death as part of an ongoing and consensual relationship, conducted behind the back of Stites' jealous and volatile fiancé Jimmy Fennell Jr., then a Giddings police officer.

In this appeal, Reed's attorneys were asking for the right to further pursue an ineffective assistance of counsel claim, related to his attorneys' failure to effectively challenge the "temporal" link between the sperm found in Stites and her time of death. At trial, the jury was given the incorrect assertion that sperm could only survive intact for roughly 24 hours, which, if true, would counter Reed's assertion that he and Stites had sex more than 24 hours before she died. In its ruling, the 5th Circuit judges denied that the issue wasn't vetted at trial. "[T]he fact that Reed's sperm was in Stites is undisputed," Judge Carolyn Dineen King wrote for the panel. "The need to explain that fact drives Reed's efforts to show that he and Stites were engaged in a clandestine sexual affair." But he has not done so, the court ruled.

The court also denied Reed's actual innocence claim, as well as his arguments that the state failed to disclose certain evidence favorable to Reed – including evidence to suggest that Fennell, now in prison for raping a woman while on duty as a cop, was a far more likely suspect in her death.

Reed's attorney Bryce Benjet said he is disappointed by the ruling, which fails to acknowledge that none of the state's witnesses at trial now support their assertion, at trial, that Stites was raped "at or near the time of her death," he wrote in an email. "To the contrary, the State's primary forensic witness [former Travis County Medical Examiner] Dr. [Roberto] Bayar­do now believes that the evidence suggests intercourse at least 24 hours before death," he continued. "Our claim is that the jury should have heard this compelling forensic evidence" and that U.S. Supreme Court precedence requires that the case be sent back to district court for consideration. "However, the ... panel wrongly refused [to] allow further consideration of this evidence of Reed's innocence."

Benjet said Reed's lawyers are considering their next move, which could include appealing to the entire 5th Circuit for reconsideration or an appeal to the U.S. Supreme Court. "We also continue to investigate the case and will pursue every option to uncover the truth in this case."

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