Rodney Reed seeking relief on death row

By: Patty Finney
Elgin Courier
Wednesday, January 8, 2014

Is an innocent Bastrop County man on death row?

Claims are now that the evidence used to convict Rodney Reed of the April 23, 1996 kidnapping, sexual assault and murder of Stacey Stites is completely undermined by the evidence in Reed's habeas proceedings.

It's been a long time for Reed. Now, 16 years after he was charged with the capital murder of Stites, he still has attorneys arguing for his defense and his claim of innocence. Nothing but semen deposited 24 or more hours before her death ties Reed to the death of Stites.

The latest arguments were heard last month in the U.S. Court of Appeals for the Fifth Circuit in New Orleans, Louisiana.

On December 4, 2013 judges in New Orleans heard Attorney Bryce Benjet's claims Reed was denied effective counsel and that no one had challenged the 'temporal link' used to convict Reed until the federal appeals process started.

Here is some of the broad history of the case:

In 1987 Reed was charged with rape and was finally acquitted of that rape in 1991.

In October of 1995 Reed met Stacey Stites in Bastrop and their relationship began, Reed said in an interview for 'State vs. Reed' a documentary released in 2006 by Ryan Polomski.

It was around New Years 1996 when Stites got engaged to Jimmy Fennell, a Giddings police officer while she is still allegedly having an affair with Reed.

April 21-22, 1996 was when Reed claimed he had his last encounter with Stites and they had relations at the State Park.

The documented timeline of April 23, 1996 is such:

3:30 a.m. - Fennell says Stites left for work though he was asleep at the time. They had showered and gone to bed between 8 and 10 p.m. the night before said Fennell, the only witness to these events.

5:23 a.m. - Bastrop Police Officer Paul Alexander finds Stites red truck in BHS parking lot before it's reported missing and calls in plates.

6:45 a.m. - HEB calls Stites mother, Carol Stites, to report Stacey didn't show up for work; Carol calls Fennell who puts out an all-points bulletin on the missing truck.

8 a.m. - Investigators make the connection between the found truck and the missing woman.

3 p.m. - Kenneth Osborn, a real estate appraiser, found Stites' body along Bluebonnet Road. The body was found with the shirt off, pants undone and zipper broken.

DPS analyst Karen Blakely examined body for rape. She found evidence of semen. A partial piece of a belt was found near the body.

Stites' body was removed from crime scene at approximately 8:55 p.m. and did not arrive at the morgue in Austin until 11 p.m.

Stites' truck was searched by DPS and only Fennell's and Stites' fingerprints were found in it besides some latent prints. Also found were one of Stites' shoes, one earring and pieces of a plastic drinking glass. The driver's seat was reclined and the seatbelt still fastened. Body fluid also found between driver and passenger seats. A partial piece of belt was found outside the truck.

Stites was not assaulted where her body was found. It was dumped there and not drug along the ground. Her work vest was found in the truck but her name tag was stuck between her knees. Her fingernails were raggedly cut to quick.

On April 24, 1996 at 1:50 p.m. Travis County Medical Examiner Dr. Roberto Bayardo performed an autopsy on Stites' body and found intact sperm, but few. There was no evidence of bruising consistent with rape. There was no DNA matching Reed found on broken belt. The State had no explanation for the oddly placed post-mortem burns on Stites' body.

Bastrop Police Department Detective Ed Salmela was initially named investigator on the case. Part of his report states he found the body fluid inside the truck. Fennell was interrogated by Bastrop Police Department Chief Ronnie Duncan.

Texas Ranger L.R. 'Rocky' Wardlow was then named lead investigator on the multi-jurisdictional case. His testimony was Fennell was prime suspect.

On April 25, 1996 Fennell was interrogated by Ranger Wardlow.

On April 29, 1996 Fennell went to BCSO about items in his truck and his truck was returned to him. Reed's defense was not allowed to confirm the DPS results on truck. The truck was sold within days after Stites was murdered.

In June of 1996 Ed Salmela was found dead of what was determined to be a self-inflicted gunshot wound. Wardlow, who was a roommate of Salmela's at the time of the death, was the investigator.

In the documentary 'State vs. Reed' Ed's brother, Scott Salmela, said during clean-up of Ed's apartment he got a call from the laundry about clothes Ed had taken to get cleaned. Ed had told the laundry clerk he was going to Louisiana and would be back in an hour to get the clothes. Also, Scott found Ed had taken $600 out of his bank account after dropping off his clothes and within one hour of that transaction he was dead.

On October 3, 1996 Fennell was given a polygraph test by licensed polygraph examiner Pat Carmack of Bastrop County Adult Supervision Department and Fennell was deceptive on the specific answer to 'Did you strangle Stacey Stites?'

On December 18, 1996 Fennell was given a second polygraph test by Texas Department of Public Safety Lieutenant Gordon Moore and again was deceptive on the specific answer to 'Did you strangle Stacey Stites?'

Blood samples from 28 suspects did not match DNA from Stites. Ranger Wardlow interrogated many suspects and detailed reasons for releasing them but that was not done for Fennell. Fennell's apartment was never searched as the last place Stites was seen alive. Standard procedure was not done because of 'lack of probable cause'. Wardlow said four of five interrogations with Fennell were 'very adversarial'.

Fennell was ruled out as a suspect because he would have had no means of getting to his apartment by the time that Stites' mother received the 6:45 a.m. call that Stites had not arrived for work. This was based on the unstated assumption that Fennell acted alone.

In March of 1997 Bastrop Police Officer David Board brought forward the 1995 case DNA evidence of Reed's to match the DNA from Stites. Reed was arrested on an unrelated charge and then indicted for the murder of Stites. When Reed is being investigated for drug charges and shown a photo of Stites, Reed denies knowing her.

On April 4, 1997, one full year into the investigation, Reed is charged with the capital murder of Stites. Fennell had been the top suspect until Reed's DNA came into the system.

Prosecuting attorneys were Bastrop District Attorney Charles Penick, Assistant Bastrop District Attorney Forrest Sanderson and Assistant Attorney General Lisa Tanner. Appellate Counsel were Lisa Tanner and Charles Penick.

On January 29, 1998 Defense attorneys assigned were Lydia Clay-Jackson and Calvin Garvie. Appellate Counsel was David Schulman.

On May 13, 1998 a DPS report by Wilson H. Young, criminalist, to Lisa Tanner showed results of tests on beer cans found at the scene which have DNA excluding Reed but including Stites, Ed Salmela and Giddings Police Officer David Hall, who lived in the same apartments as Fennell and Stites and was a friend to them. (Exculpatory evidence withheld from defense.)

In May of 1998, Reed's trial lasted three weeks. The jury deliberated for four hours to determine guilt. Two weeks later they assigned the death penalty. District Judge Harold R. Towslee presided.

In March of 1998 the Court appointed defense attorneys were Duane Olney and co-investigator Pat Olney. Defense Attorneys claimed Reed and Stites had a consensual secret affair and that explains presence of his DNA in Stites and the defense also claimed Fennell killed Stites in a rage after finding out about her affair with Reed.

The State claimed that, as a pedestrian, Reed assaulted Stites somewhere along the way as she drove to work around 3:30 a.m. The claim is based on the semen having been put there within 24 hours of her death based on ME Bayardo's report. State testimony confirmed the fact intact sperm indicates it was deposited shortly before or at Stites' death.

The State denied Reed's claims, said Reed could not prove the affair with Stites and could not tie Fennell to crime.

Unanswered questions at initial trial were: How could Reed leave no DNA evidence in Stites' truck? Why did police not search the Giddings apartment where she lived with Fennell? Why did attorneys not prove the affair with witnesses?

In the documentary 'State vs. Reed' Independent Investigator David Fisher showed burns on Stites' body in crime scene photos that are significant. No mention of how these were made was in Bayardo's autopsy. The burns are post-mortem, almost third degree burns.

Fisher pointed out the ligature mark at the strangulation point is not pink as it would have been if Stites were alive when strangled.

Fisher approached ME Bayardo with that information and Bayardo told Fisher it was very difficult to tell the difference between suffocation and strangulation, "So, I just guessed," he said. Also, the cigarette burns on body noted in autopsy were not there in crime scene photos.

Fisher showed the autopsy photos show a spec on Stites' tooth consistent with 'popcorn pieces' on floorboard of truck indicating she was at some time face down on floorboard.

In November of 1999 in the 21st District Court, Reed filed his original writ of habeas corpus with Bill Barbisch, attorney. Reed's defense had finally seen the May 13, 1998 document of results of DNA on beer cans at site where Stites' body was found.

State Habeas Counsel were Lisa Tanner and Tina Dettmer.

In February of 2001 Reed filed his second writ of habeas corpus which is dismissed as successive.

On September 17, 2001 Arthur Eisenberg, a pathologist in Tarrant County, did further DNA testing on beer cans found at the site near where Stites' body was found. David Hall was still not excluded based on those results.

In February of 2002 Reed's original writ is denied.

On February 10, 2003 Reed sought a federal appeal to vacate the death sentence with a 133-page appeal by Attorney Bryce Benjet stating witnesses were not called, Penick rejected witness' testimony, and there was evidence tampering.

Lydia Clay-Jackson, attorney for Reed filed the declaration in the U.S. District Court for the Western District of Texas. The declaration stated: Reed's defense was rushed and incomplete as they were appointed January 29, 1998; and the defense knew Fennell had failed two polygraph tests but counsel could not put Fennell back in Giddings to get the call Stites had not made it to work at 6:45 a.m.

Counsel had not seen the affidavits of Keng and Barnett until January 30, 2003 and other witness information was not given to defense in official reports such as Barnett's statements and police reports from Prater family.

The May 13, 1998 DPS DNA testing results on beer cans near Stites' body was not provided to defense and the January 2001 DPS report on further DNA testing by Arthur Eisenberg which excluded Stites' and Salmela's DNA but not David Hall's DNA had not been reviewed.

On February 10, 2003, the defense first saw the complete DPS video compiled at the site Stites' body was found that shows authorities drove vehicles over roadway destroying evidence; walked over the dirt road without preserving evidence first; wore no protective clothing during evidence collection; did not change gloves between evidence tasks; failed to record rigor mortis, post-mortem lividity and temperature to determine time of death; moved Stites' body inappropriately; and had cross-contaminated evidence due to not changing gloves.

Consequently, the defense did not believe Reed's conviction was reliable.

On November 18, 2003 Stephen Keng filed an affidavit in Lee County documenting a conversation he had relating information from witness Martha Barnett to DA Penick to which Keng said Penick responded 'Laughing, and he told me he had all the evidence he needed, and did not want to hear any more about the case'.

In March of 2004 the District Court issued a stay.

In March of 2005 Reed filed a second subsequent state application for a writ of habeas corpus. The District Court remands two of Reed's claims for evidentiary hearing.

In November of 2005 the US Western District Court held a rehearing on suppression of evidence.

On March 9, 2006 Reed's defense requested documents on Sgt. Curtis L. Davis, Jr. - one of which showed him recommending Fennell and the other being his timesheet where he left work with a broken tooth on April 22, 1996 and was off work from April 23, 1996 to April 27, 1996 for a personal death.

On March 21, 2006 Arthur Eisenberg, a pathologist in Tarrant County, made a declaration on the results of further DNA testing on beer cans found at the site near where Stites' body was found. David Hall was not excluded based on results from his September 17, 2001 testing.

On March 27, 2006 the Bastrop District Court held a hearing of the third habeas application on two of the claims Reed raised. The claims were based on the forensic evidence used by the state being profoundly misleading and that Reed sexually assaulted Stites at or near the time of death is completely unfounded and based on incompetent evidence.

Also, there was ample evidence Fennell had opportunity and motive and the state suppressed much of this evidence including the eyewitnesses - Martha Barnett who saw Stites and Fennell together in a loud confrontation at the Old Frontier parking lot the morning before she was killed; and Jennifer Prater and Brenda Prater who saw Stites in their neighborhood driving around with a male that was not Reed.

Also suppressed were the DNA tests on beer cans found near Stites' body that suggested she shared a beer with Fennell's close friend, neighbor and fellow Giddings Police Officer David Hall as well as Salmela. Also suppressed was a statement by Fennell made before the murder that if he caught his girlfriend cheating he would strangle her with a belt.

The hearing included the Stephen Keng affidavit in Bastrop County to show evidence from his calendar and client files he spoke to Charles Penick on March 23, 1998 about witness Martha Barnett seeing Reed and Stites. Keng had filed an affidavit November 18, 2003 documenting the conversation in Lee County. That affidavit included a letter from Penick recommending Keng.

On April 6, 2006 Pamela Duncan filed an affidavit in Lee County regarding her relationship with Jimmy Fennell, Jr.

Duncan began dating Fennell in August of 1996. Her report states he was 'extremely possessive and jealous', 'verbally hostile', 'screamed in public', and was 'extremely prejudiced against blacks.'

She also stated Fennell and David Hall were good friends. Duncan's relationship with Fennell was over by September 1997, but she claimed she was stalked for months by Fennell driving by, screaming obscenities, showing up at her work, and harassing her friends as an officer. She said Fennell did so until she filed a police report and he moved.

On April 14, 2006 LeRoy Riddick, M.D., State Medical Examiner for the Alabama Department of Forensic Sciences and County Medical Examiner in Mobile County, filed an affidavit in the State of Alabama after reviewing Bayardo's autopsy report and testimony, photos and video of the site Stites' body was found, Blakely's testimony, DPS reports, crime scene reports and police reports of witness interviews.

Dr. Riddick concluded the time of death could not be determined without the information being gathered at the scene. Bayardo's autopsy report at 1:50 p.m. the day following Stites' body being found had left the corpse refrigerated almost a full day. Evidence of anal intercourse was not conclusive.

The cause of death reported, 'Asphyxia due to ligature strangulation associated with sexual assault' was incorrect because there was no evidence of sexual assault. In evidence collection, no DNA was sought from Stites' fingernails and the video shows possible cross-contamination of evidence due to not changing gloves between tasks.

On August 2, 2007 Ronald L. Singer, M.D. Crime Laboratory Director of the Tarrant County Medical Examiner's Office Criminalistics Laboratory in Ft. Worth filed an affidavit after reviewing Bayardo's autopsy report and testimony, still and videotape images on the site Stites' body was found, Dr. LeRoy Riddick's affidavit, Lisa Tanner's, Missy Wolfe's and Wilson Young's testimony and evidence submissions reports by law enforcement authorities.

Dr. Singer concluded at the scene Stites' body was found investigators 'exercised poor security and poor control at scene' as well as poor techniques in evidence collection, lack of DNA testing on the belt pieces supposedly used to strangle Stites and the testimony by Blakely 'went well beyond her area of expertise when testifying' on issues such as time of death, identification of marks on the body and determining it a crime of passion.

On August 24, 2007 the Court of Criminal Appeals in Texas received the Brief of Applicant Rodney Reed.

In March of 2008 the Appeals court weighs appeal in evidentiary hearing before Judge Reva Towslee-Corbett and denies the request sending it back to federal courts.

In July of 2008 Fennell pleads guilty to kidnapping and sexual assault of a woman in his custody as a Georgetown Police Officer and is sentenced to 10 years.

On December 17, 2008 the Texas Court of Criminal Appeals ruled Reed failed to prove prosecutors suppressed evidence in his 1998 trial. Judge Reva Towslee-Corbett ruled there was not credible evidence the state had done anything wrong. The Judge accepted the findings of fact provided by state without question.

In May of 2009 Reed filed a state appeal with details of Fennell's aggressiveness and crime.

On December 22, 2009 Reed was back in court with a 158-page brief seeking a hearing on evidence in Federal District Court. New evidence of Fennell's alleged violent history toward women moved the case from federal court back to the Court of Criminal Appeals.

On June 15, 2012 Judge U.S. Magistrate Judge Andrew Austin recommends U.S. District Judge Lee Yeakel to reject Reed's appeal.

On June 29, 2012 in the U.S. District Court for the Western District in Texas - Director Rick Thaler of the Texas Department of Criminal Justice, Correctional Institutions Division, respondent, objections were filed to the report and recommendation of the U.S. Magistrate Judge with brief in support that concluded he does not object to ultimate conclusion to deny Reed federal habeas relief but did file four objections to Reed's claims for procedural default as in abuse of writ.

On August 13, 2012 the U.S. District Court for the Western District in Texas - Director Doug Dretke of the Texas Department of Criminal Justice, Correctional Institutions Division, respondent, filed petitioner's (Reed's) objections to the report and recommendation of the magistrate judge which stated Reed was convicted on the theory that he kidnapped, sexually assaulted and strangled Stites to death.

The main points were:

The evidence of sexual assault is unreliable. Reed's defense secured declaration from ME Bayardo and affidavits from Dr. Singer and Riddick which negates the State's forensic case. The presence of semen is a fact, but not conclusive evidence of guilt.

Credibility of witnesses who could confirm the consensual relationship was determined by lack of evidence of cocaine in toxicology reports on Stites' hair. The testing done would have only showed heavy cocaine use and re-testing was requested.

The report wrongly states that law enforcement adequately scrutinized Fennell. Fennell's apartment was not searched. Fennell was seen arguing with Stites at a time he said he was asleep.

An investigation might have found Fennell's friend, Sgt. Curtis Davis, left work around the time of murder and that he was with Fennell when he went to see his truck parked at BHS. Davis and Fennell were overheard taking about Stites' affair by Jane Campos.

Fennell had threatened to kill Stites if he caught her in an affair by strangulation with a belt a classmate, Blackwell, stated. The law enforcement assumptions it was impossible for Fennell to commit the crime is undermined by the DNA on the beer cans.

Fennell's character has been undermined by his recent guilty plea in a kidnapping, sexual assault case.

The conclusion being that all exculpatory evidence presented would effect a jury applying a reasonable doubt the petition stated.

The petitioner had many other points, stating the Magistrate gave more deference than warranted to the State Court Findings, the procedural default determined was regularly applied, and the report wrongly rejects Reed's ineffective assistance of counsel claims as procedurally defaulted.

Also incorrect were the determinations of suppression of exculpatory DNA testing on the beer cans and suppression of eyewitness accounts by the Prater family were not prejudiced as well as objection to the reports' treatment of the 'Brady' claims.

The conclusion to the petitioner's comments was the evidence used to convict Reed was completely undermined by the evidence in habeas proceedings.

Reed requests the court vacate his conviction and death sentence and order him to the custody of the Bastrop Sheriff's Office for further proceedings or for his release and grant any other relief that law or justice may require.