AUSTIN, Texas — Editor's note: The Texas Court of Criminal Appeals ordered a stay of Reed's execution on Nov. 15. Click here to see what that means.
The voices of Rodney Reed’s supporters have been rising over the past few months as an increasing number of lawmakers, celebrities, editorial writers and people from around the world hope to save him from execution for crimes they say he did not commit.
Reed was scheduled to be executed in Texas on Nov. 20 despite repeated attempts by his lawyers to get a stay of execution and a new trial for the man they say has been wrongly convicted.
In our Podcast series, Texas Crime Files, we’ve been hearing from both sides of the issue concerning Reed’s guilt or innocence – those who believe that Reed was the killer of 19 year old Stacey Stites – and those who believe that Stites’ fiancé Jimmy Fennell murdered her.
Now in episode three, we continue our story of what happened after investigators tied Reed to the death of Stites. According to police, the damning evidence was the discovery of Reed’s DNA inside Stites' body. Prosecutors say he had raped her then killed her. Defense attorneys support Reed’s assertion that they were having an affair, and his sperm was found in her body because they had reportedly had consensual sex days before she was found dead.
Rodney Reed went on trial in 1998 in the small town of Bastrop, Texas. An all-white jury had been selected to try Reed, a black man, in that county’s first capital murder trial in decades.
Dave Harmon covered the trial for the Austin Statesman newspaper, where he worked as a reporter at the time. Harmon is now an investigative editor for The Texas Tribune.
Harmon: “This was a big murder case in a small town with a very big racial component. There were a lot of folks interested in this case and the courthouse was full. The crowd was separated. The African American spectators tended to file up into the balcony every day and watch from there and the white spectators were in the lower area in the benches. It was tense, you know, there was a lot of tension in the room as the trial went on. You know, I felt like the defense did a good job with what they had, and what they had was a contention, or a defense that the DNA came about because Rodney Reed and Stacey Stites were having a secret affair. And an affair that neither one of them wanted anyone to know about because it would’ve meant – it would’ve been an interracial relationship in a small town.”
While the defense played up the consensual relationship between Reed and Stites the prosecution had a totally different framing. They argued that there had been no affair at all and Reed made up the story.
Harmon: “The prosecution's case was so heavily dependent on the DNA evidence. They did not have fingerprints or hair or anything else really connecting Rodney Reed to the crime scene. So DNA was their case. They characterize it as a random attack, they didn’t, I don’t remember them having a motive. And their theory was that Rodney Reed kind of ambushed Stacey as she’s driving her fiancé’s pick-up truck to work from Giddings to Bastrop, so somewhere between Giddings to Bastrop, their theory was Rodney Reed got her out of the truck somehow and killed her.”
Stites' fiancé, the police officer Jimmy Fennell, took the stand for the prosecution at the trial. Fennell was an early suspect in her murder and actually failed two polygraph tests. Dave Harmon talked about what Fennell said when he took the stand.
Harmon: “He was upset that he had initially been considered a suspect, pretty much said ‘I didn’t kill her,’ and he had been questioned by a Texas Ranger and the Ranger testified he was extra tough on Jimmy because Jimmy was a police officer. But, in the end, the ranger said he just didn’t have anything to go on. Although, the police did not, or the investigators did not search the apartment that Stacey and Jimmy shared. The thing that really surprised me was the discussion about the polygraph, which the jury never heard. And people who are familiar with criminal justice, know that judges routinely do not admit polygraph evidence because it’s considered unreliable. But, out of the jury’s presence, it was revealed that Jimmy Fennel took a polygraph and he was asked if he strangled his fiancé, and he failed. The judge ultimately said I’m not going to let the jury hear that. But that, to me, was very surprising. Jimmy Fennel wept on the stand, and that was a pretty powerful moment, because he was a big, tough Texas law officer and got up there and cried when he talked about his fiancé dying. And I was really waiting to see how the defense was going to advance its theory that there was a secret affair between Rodney Reed and Stacey Stites. So, after the prosecution rested and it was the defense's turn, they called Iris Linley, and she was a friend of the Reed’s, and she said she was visiting the Reed family and a young woman walked up and asked for Rodney, and Rodney wasn’t home at the time. And Linley testified that the woman asked her to tell Rodney that Stephany came by. And, at that point, the defense lawyer said, ‘what did you say her name was?’ And Linley said ‘Stephany, Stacey, Stacey,’ so she got the name wrong. And the defense lawyer showed her a photograph and she identified her as Stacey Stites, but it really didn’t, it wasn’t very powerful testimony, and this was a pretty key defense witness. And the name was wrong, and really all she could testify to was that a woman came by asking for Rodney Reed that she believes was Stacey Stites. Which does not prove an affair. There was a lot of testimony about a man named David Lohan who had pleaded guilty to murdering a woman from Elgin around the same time that Stacey Stites was killed. Elgin is, yeah, it’s not far from Bastrop, both in Bastrop County. And the woman from Elgin was murdered in 1996, right around the time as Stacey Stites. She was also strangled, her body was also dumped in a rural area, so the defense pointed to him as a potential suspect as well, and they actually produced a couple witnesses who said that Lohan and Stites dated. And one of them said that she saw the two of them together at a festival in Smithville and he introduced Stacey Stites as quote-unquote ‘his girl.’ So, the jury heard that, and the defense tried to get him to take the stand and testify and he refused to answer questions. You know, I remember thinking when the jury went out that Rodney Reed was most likely going to get convicted, because the DNA evidence was really hard to explain away and the defense theory, they just weren’t able to back it up with witnesses. So, my hunch was that he was going to get convicted, which is what happened.”
I asked Harmon about his thoughts regarding the trial now that two decades have passed.
Harmon: “What I think has changed a lot of peoples thinking and really made me think twice was Jimmy Fennel’s arrest, I think, I don’t know, 10 years later, for kidnapping and sexually assaulting a woman in his custody. I think people are questioning the verdict and the punishment with pretty good reason. Because, what we know now about Jimmy Fennel after his arrest and him being sent to prison for violence against a woman and the fact that he, his apartment wasn’t searched at the time and questions that have surfaced later about the exact time that Stacey died, there have been conflicting expert opinions about the time of death, which have a big impact on who might have done it. And also witnesses who have come forward recently who really call into question whether Jimmy was the culprit.
One of Reed’s defense attorney’s in that 1998 trial was Lydia Clay-Jackson, who contends that she could have been more successful at demonstrating to the jury that indeed Reed and Stites were having a secret affair, but that some of the witnesses chose not to testify, she says, out of fear. Although a Bastrop bartender did testify on the witness stand that she had seen Reed and Stites together from time to time.
Clay-Jackson: “Rodney gave us a number of names of people who he thought would be able to testify concerning the relationship between he and Stacey. My co-counsel, Calvin Garvey, and I spoke with everyone who was willing to speak to us about that but no one was willing to go that extra mile and say they would talk, say they would give testimony, and I think it was because of the times there in the county.
Garcia-Buckalew: "At the time of the trial, there was some question about whether the defense could prove that there was an affair between Stacey Stites and Rodney Reed, and I know that did not necessarily come out clearly in the trial."
Clay-Jackson: “That is true, it didn’t come out clearly. The person that we had, and I, the lady was so heroic testified yes that she had seen the two together, so she was willing to come and testify. She called us about two days after our conversation with her at her home or maybe it was two days before she was supposed to testify, saying that she was told that terrible things would happen to her should she to testify. She was still willing to come and testify after I said to her if anything happens to you, legally, I will come back to this county and I will represent you for free."
Garcia-Buckalew: "Who do you suppose threatened her?"
Clay-Jackson: “Someone who had the power to have her arrested. I hesitate to say who, in fact, it was because I don’t have that information and I don’t want to speculate about that. But, in fact, the threat did come about.”
Garcia-Buckalew: "Looking back in time to that trial, what thoughts come to mind now, now that we have the space of time?"
Clay-Jackson: “Well, an answer to why Judge Townsley was so adamant in wanting us to go to trial in eight weeks from the time both of us were appointed to represent Rodney. He would not give us a continuance and he continued to say he’ll give us more investigators, well, good trial lawyers investigate what the investigators have found, the evidence of the investigators. And just because we had more investigators did not necessarily equate to having the time to really look at what the investigator was finding. I would hope that Rodney would be granted, if not exonerated from this, that he would be granted a new trial, and that all the individuals who have now come forward would be willing to continue to come forward and testify on his behalf. But we’ve had our highest criminal court in Texas has said as long as a fair trial, you know, whether the person is guilty or not guilty, innocent, is no – has no consequence, that’s a strange way of looking at the law, but that’s the way the law is sometimes.”
Clay-Jackson did point out there were holes in the police investigation after Stites' murder. Among them, police processed Jimmy Fennell’s pickup truck – the one Stacey Stites was to have driven to work the day her body was found. But they gave the truck back to Fennell. And he sold it shortly after.
Also Investigators did not process the apartment where Fennell and Stacey lived.
"This was a complete violation of due process," said Clay-Jackson.
Lisa Tanner, with the Texas Attorney General’s Office and who served as the lead prosecutor on the team that persuaded the jury to convict Rodney Reed, was asked about the fact that investigators never examined Stites’ and Fennell’s apartment after the crime occurred.
Tanner: “Unquestionably that was ... that was bad. But I have spent more hours in my life and the last 22 years trying to figure out how Rodney Reed could've not killed Stacey Stites. I've tried to figure out how Jimmy Fennel could have killed Stacey Stites. I can't get there. But I have always, and I remain open to the possibility, but I know all of the evidence, I know how things fit together and frankly, I ... I can’t get there."
Reed has been on Texas’ death row for almost 22 years. To the prosecutors and to Stites immediate family, Reed is guilty. And appellate courts have consistently upheld the guilty verdict.
But over time, there has been growing doubt among some whether he was her killer. New witnesses have stepped forward to support Reed’s claim that he and Stacey were lovers and that Stites' fiancé found out about the affair and killed her.
Next time of Texas Crime Files, we talk to Reed's attorney Bryce Benjet.
Benjet: “There’s no way that what the state told the jury happened is even possible.”
In episode 4, Reed’s defenders share their concerns that the wrong man may be executed as prosecutors and Stites’ family hold firm to their belief that Reed deserves the death sentence.
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