In a January 21, 2022, post, we called upon the Texas justice system to vacate the 1998 murder conviction and death sentence of Rodney Reed.
That will not happen.
On June 28, 2023, the Texas Court of Criminal Appeals, in a mammoth 129-page decision, categorically rejected every claim Reed has made for a new trial, including his claim of “actual innocence” and his right to advanced DNA testing that would support his innocence claim. The appeals court summed up its decision with the conclusion that “Reed has failed to make an affirmative, persuasive showing that, likelier than not, he is innocent of Stacey Stites’s murder.”
That may not be the final judicial word on the Reed case.
Just two months before the Court of Criminal Appeals decision, the US Supreme Court issued a 6-3 majority opinion that Reed can still pursue a 1983 civil rights claim that the state’s post conviction DNA testing law denied him federally protected due process.
It is too soon to determine how the federal civil rights case will end. Whether DNA testing on crime scene evidence, including the murder weapon will eventually be done and whether it will exclude Reed as Stacey Stites’s killer and point an incriminating finger at someone else also remains to be seen. What is known is that the test results would need to be conclusive, completely exonerating Reed, to overcome the Court of Criminal Appeals’129-page analysis of Reed’s guilt.
Here are the core facts surrounding the murder of Stacey Stites:
- In April 1996, Stites was an employee with the Texas grocery chain HEB in Bastrop, Texas.
- Stites was engaged to a Giddings, Texas police officer named Jimmy Fennell, with whom she shared an apartment in Giddings—a community not far from the city of Bastrop.
- On April 23, 1996, Stites left her apartment at approximately 3:00 a.m. in Fennell’s pickup truck to drive to work to start her 3:30 a.m. shift.
- A missing person alert went out when Stites did not arrive at work as scheduled.
- At approximately 9:00 a.m. on the morning of April 23, Bastrop police and detectives identified a truck in the parking lot of the Bastrop High School as the one belonging to Fennell.
- Clothing and footwear belonging to Stites was found in the vehicle, as was evidence that the vehicle belonged to Fennell.
- At approximately 2:45 p.m., Stites’ body was found alongside a dirt road outside Bastrop.
- At approximately 5:00 p.m., forensic technicians with the Texas Department of Public Safety (DPS) arrived at the “crime” scene and began collecting evidence.
- An autopsy placed Stites’ time of death at “around 3:00 a.m.”—shortly after she had left for work.
- The crotch of Stites’ underwear was wet and on-scene tests of her body tested positive for sperm, indicating she had been sexually assaulted. The sperm still had tails, indicating they had been deposited within the previous 24 hours.
- Forensic evidence conclusively revealed that Stites has been vaginally assaulted and probably anally assaulted.
- Forensic evidence revealed that Stites had been strangled to death with her leather belt.
- Stites’ body had cuts, bruises, scratches, burns, bite marks, and abrasions to her body—all of which occurred during and after the assailant killed her. There were no defensive wounds on the body.
- Salvia from bite marks on Stites’ breasts matched the spermatozoa found in her underwear and vagina.
- Based on the physical injuries and the freshness of the spermatozoa, investigators concluded that the sperm depositor was Stites’ killer.
- As the last person to have seen Stites alive, Fennell was considered a “suspect” at the outset of the investigation. He was interrogated extensively and administered two polygraph tests (both of which he failed). Still, he was ruled out as the killer when DNA tests revealed he was not the depositor of the semen evidence.
- Giddings patrolman David Hall, who discovered Fennell’s pickup and who was a friend of Fennell, and Bastrop detective Ed Selmala, who was the first at the scene where Fennell’s truck was located and who committed suicide four months after the Stites murder, were considered “suspects” but cleared after DNA evidence showed, as it had with Fennell, that they were not the depositors of the semen evidence.
- Over an 11-month investigation, some 28 males were identified as possible suspects. All were cleared through DNA evidence, including David Lawhon, who killed a woman in a similar fashion as Stites had been murdered.
- Seven months after Stites’ murder, Rodney Reed became a suspect after he became a suspect in a sexual assault similar to Stites’ assault. Initial analysis of Reed’s DNA (Reed’s DNA was already in his DPS criminal history files) showed that he could not be excluded as the depositor of the DNA evidence found at the Stites crime scene.
- Investigators secured a search warrant to draw Reed’s blood for additional DNA analysis. That analysis included tests by DPS crime lab and a private crime lab. Both sets of tests reached the same result as the initial DNA test: Reed could not be ruled out as the depositor of the crime scene DNA evidence.
Reed was arrested on April 4, 1997, and subsequently indicted for Stites’ sexual assault/murder. On May 18, 1998, After deliberating for six hours, a jury convicted Reed of capital murder; on May 28, 1998, after four hours of deliberation, the jury recommended that a death sentence be imposed.
The State’s prosecution evidence consisted primarily of the crime scene DNA evidence, but there was no physical evidence or witness testimony to connect Reed to Stites’ murder.
Reed’s defense was based on the assertion that he and Stites had been involved in a consensual romantic/sexual affair in the months preceding her murder; and that either Jimmy Fennell or David Lawhon killed Stites: Fennell out of jealous rage because he learned of the alleged interracial affair between Stites and Reed; and Lawhon because he killed another woman in a manner similar to the way Stites had been killed weeks after Stites’ murder.
In support of his actual innocence claims since his 1998 conviction, Reed has compiled credible evidence, through sworn affidavits and witness testimony, that he and Stites were involved in a secret affair (explaining his potential link to the crime scene sperm evidence) and that Jimmy Fennell is the actual killer of Stites. This evidence includes:
- Stites’ leather belt, the murder weapon, has never been DNA tested, and the state courts have refused to allow such testing.
- Defense forensic pathologists now say that Reed’s guilt is “medically and scientifically impossible.”
- Bastrop sheriff’s deputy Curtis Davis says Jimmy Fennell gave inconsistent accounts about his whereabouts on the night of Stites’ murder.
- Fennell later served a ten-year sentence for a kidnapping and sex crime committed while he was on duty.
- An Aryan Brotherhood member with whom Fennell was imprisoned has come forward to say Fennell confessed to him that he killed Stites because she was romantically involved with a black man.
The timeline and Reed’s own sexual criminal history are the primary barriers to his claim of actual innocence.
He and his supporters argue that his sexual relationship with Stites explains the DNA evidence linking the crime spermatozoa to Reed. The sperm collected from Stites underwear and vagina was fresh, indicating recent sexual contact.
Stites’ mother, Carol, placed Stacey in either the mother’s apartment or Stacey’s apartment from the early afternoon of April 22 till sometime after 8:30 p.m. when she and Fennell retired to their apartment. Stites was at her HEB job from 3:30 a.m. on April 22 to the early afternoon when her shift ended.
That narrow timeline only allowed for a quick sexual encounter between Reed and Stites sometime after she got off work and before she arrived at her mother’s apartment in the early afternoon of April 22. Stites’ body was discovered at 2:45 p.m. on April 23. The sperm in her underwear and vagina strongly indicated that it could not have been deposited 24 hours earlier during a brief sexual encounter with Reed or anyone else on the afternoon of April 22.
And that brings us to this question: if the prosecution is so confident that Rodney Reed is guilty, then why not subject the murder weapon to DNA testing?
If someone else’s DNA is on the murder weapon, then that evidence would certainly tend to exonerate Reed. If Reed’s DNA is on the murder weapon, that would effectively close the door to Reed’s claim of innocence.
So, why not DNA test all the physical evidence collected at the crime scene?
The Stites’ killer’s identity lies in that evidence.
During the punishment phase at Reed’s 1998 trial, the State offered the following inflammatory evidence of Reed’s violent sexual criminal history:
- In August 1987, Reed physically and sexually assaulted a nineteen-year-old female named Connie York. According to York, during the assault, her attacker attempted to penetrate her anus. When Reed was tried for this offense in 1991, he claimed that he and York were in a secret relationship and that the sex was consensual. The jury acquitted Reed of sexual assault.
- In September 1989, while Reed was on bond for the York sexual assault, he physically and sexually assaulted the pseudonymous complainant, A.W., a twelve-year-old girl. DNA testing showed that Reed could not be excluded as the person who deposited semen in AW’s vagina. Photographs corroborated AW’s claim that her attacker repeatedly beat her and bit her face during the encounter. According to AW, during the assault, her attacker penetrated her anus and restricted her breathing.
- In September 1991, Reed physically and sexually assaulted the mother of his children, Lucy Eipper Gibbs (“Eipper”). Eipper testified that, on another occasion, Reed penetrated her anus without her consent.
- In May 1995, Reed sexually assaulted his mentally disabled girlfriend, Carolyn Rivas. Rivas asserted that Reed held a pillow over her face and penetrated her anus without her consent. A SANE examination revealed abrasions around Rivas’s anus consistent with “anal rape.”
- In October 1995, Reed sexually assaulted a woman named Vivian Harbottle underneath a train trestle in Bastrop. DNA testing showed that Reed could not be excluded as the person who deposited semen in Harbottle’s vagina.
- In November 1996, in Bastrop, Reed physically assaulted and attempted to sexually assault a nineteen-year-old female named Linda Schlueter. The evidence showed that Schlueter’s attacker used her car to flee the scene.
Does this extraneous evidence support Reed’s claim of innocence? No. But it should not prevent the resolution of Reed’s claims of actual innocence on this case. The Innocence Project has laid out a compelling case for the possibility that Reed is, in fact, innocent, and that the investigation was tainted with racial prejudice. Why not allow those claims to be fully heard and all the DNA tested?
The Court of Criminal Appeals did not accomplish a just resolution in its extraordinarily lengthy June 28, 2023 decision.
Let the crime scene DNA evidence decide who killed Stacey Stites—not the Court of Criminal Appeals.