Death Watch: The Wrong Man?

The state of Texas had planned to execute Rodney Reed next Thursday, March 5, for the 1996 murder of Stacey Stites, even in the face of mounting evidence that suggests the Bastrop man did not actually commit the crime. However, on Monday, Feb. 23, Texas' highest court, the Court of Criminal Appeals, issued a stay of execution in order to have time to consider a Feb. 13 appeal for retrial, which attempts to undermine the state's entire set of findings regarding the timing and events surrounding the murder.

Around 3pm on April 23, 1996, 19-year-old Stites was found dead along the side of a country road outside of Bastrop. Nobody had seen her in the 20 hours before her discovery – other than her live-in fiancé Jimmy Fennell Jr., a Giddings police officer (currently serving a 10-year sentence for a subsequent kidnapping and improper sexual contact with a person in custody) who told police that the two went to sleep together on April 22 and that she left, as she always did, in Fennell's pickup truck the next morning at 3:30am for her shift at H-E-B. Investigat­ors accepted that testimony as gospel and, for nearly a year, whittled away more than 20 suspects before ultimately closing in on Reed, whose semen was found in her body. The 29-year-old was arrested on April 4, 1997, and charged with two counts of capital murder. A year later, in late May 1998, Reed was convicted and sentenced to death.

The conviction came despite the fact that state prosecutors' only physical evidence of Reed's involvement was that his DNA matched that of semen found in Stites' body. None of Reed's DNA was found inside the truck (discovered the morning of the murder in a parking lot at Bastrop High School), though four sets of fingerprints – belonging to Stites, Fennell, and two others who never became suspects – were found. And there was no direct evidence that Reed had ever handled the murder weapon, Stites' belt, used to strangle her. Reed's defenders maintain that the prosecution also withheld additional evidence that could have helped exonerate Reed at trial – such as lab reports that analyzed DNA taken from two beer cans found near the body – and that Reed's mostly court-appointed attorneys did a poor job of defending their client, failing to present a number of witnesses who could have both served as alibis and attested to the fact that Reed and Stites had engaged in a quiet affair since October 1995. Though he originally told police that he didn't know Stites, Reed has since maintained that he last saw Stites when the two met at a park early in the morning on April 22 to have sex – something that would explain the semen.

The Texas Defender Service tried to argue these points in a federal habeas corpus appeal filed Feb. 14, 2003, alleging prosecutorial misconduct, inept investigative work, and ineffective assistance of counsel throughout Reed's trial, but its efforts proved unsuccessful. Since then, a team of lawyers, including former TDS attorney Bryce Benjet (now with the Innocence Project), has made a series of similar appeals challenging the prosecution: with the Bastrop County District Clerk in 2006, the Texas Court of Criminal Appeals in 2008 and 2009, and the federal district court in 2010. In June 2012, two months before former Travis County Medical Examiner Roberto Bayar­do revealed that his testimony during Reed's trial was misconstrued by prosecutors to suggest a solid timeline for Stites' death and to prove that Reed had sexually assaulted Stites, federal magistrate Judge Andrew Austin recommended to District Judge Lee Yeakel that Reed's federal appeal be flatly denied.

The 5th Circuit rejected a Jan. 2014 appeal requesting to further pursue an "ineffective assistance of counsel" claim. And on Nov. 25, visiting Judge Doug Shaver denied Reed's request to introduce new DNA testing into the case. In April, between those two rulings, Connie Lear – the woman Fennell raped in 2007 – told documentary filmmaker Ryan Polomski (director of the 2006 film State vs. Reed) that she believed Fennell was the actual murderer.

On Feb. 13, attorneys for Reed filed a brief in Bastrop County court that alleged information concerning Stites' time of death was inaccurate, and that the discrepancy was enough to warrant a retrial. Specifically, the affidavits of esteemed forensic pathologists LeRoy Rid­dick, Michael Baden, and Werner Spitz argued that Stites did not die after 3am on the morning of April 23, but rather some time well before that – and in another location than where her body was found – during the time in which Fennell has testified that the two were alone together (see "Reed Seeks Retrial," Feb. 20). Reed's attorneys also submitted two affidavits from H-E-B colleagues, saying they knew of an affair between Reed and Stites, which Stites hid from Fennell. "We'd missed it," Benjet said of the discrepancies over time of death. "The state based their whole theory on the case on the police telling them that [3am] was when she left for work and would have been abducted."

Rodney Reed in 2002 (Photo by Jana Birchum)

The CCA voted 6-2, Judge David Newell abstaining, to issue a stay of execution, noting that it needed more time to consider newly discovered evidence that "supports [Reed's] claim that he is actually innocent." No timetable currently exists for the court's ultimate decision about Reed's future. For now, he avoids being the fourth Texan executed in 2015 and the 522nd since the state's 1976 reinstatement of the death penalty, but his stay precedes a string of executions scheduled over the next two months:

• Manuel Vasquez on March 11

• Randall Mays on March 18

• Kent Sprouse on April 9

• Manuel Garza on April 15

• Richard Vasquez on April 23

• Robert Pruett on April 28

Meanwhile, attorneys for Lester Bower await a Supreme Court decision on their Feb. 5 request for a stay of execution for the Texas inmate. Bower, convicted for the 1983 murder of four men in a Grayson County airplane hangar, maintains his innocence, and argues that his 30-plus years on death row has violated the Constitution's prohibition on cruel and unusual punishment.