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The state of Texas is set to execute Rodney Reed on November 20. On this special episode: The Intercept’s Jordan Smith and Liliana Segura discuss why Reed is most likely innocent. Reed has been on death row since 1998, following his conviction for the April 1996 murder of a young woman named Stacey Stites. There is an overwhelming amount of evidence that Reed is innocent and that Stites’s fiancé should be the focus of the murder case instead. Her fiancé was a police officer at the time of her killing. He has a shocking track record of assault and rape — one incident for which he was imprisoned until last year. As Reed’s life hangs in the balance, an unlikely coalition of high-profile people are trying to halt the execution, including Texas Republican politicians and elected officials. Perhaps most prominent among them is Texas Sen. Ted Cruz.

Jordan Smith and Liliana Segura are the hosts of the Murderville podcast.

Jeremy Scahill: This is Intercepted.

[Music interlude.]

JS: I’m Jeremy Scahill coming to you from the offices of The Intercept in New York City and this is a special episode of Intercepted.

The state of Texas has set an execution date of November 20th for Rodney Reed. He’s been on death row since 1998 following his conviction in the murder of a young woman named Stacey Stites that happened in April of 1996. There is an overwhelming amount of evidence in this case that Rodney Reed is innocent. There’s a very compelling case to be made that Stites’ fiance at the time of her murder should be the focus of this case.

Her fiance was a police officer at the time of that killing. He also is now a convicted felon himself with a shocking track record of violent assault and rape while he was a police officer. Rodney Reed’s life is now hanging in the balance and an unlikely coalition of high profile people are trying to halt this execution, including Texas Republican politicians and elected officials, perhaps most prominent among these is Senator Ted Cruz.

The Intercept’s tenacious reporter Jordan Smith has covered this case for 18 years and she knows the facts of it better than probably any other journalist. Jordan joins me now alongside her partner in criminal justice reporting Liliana Segura. They are the co-hosts of the excellent podcast series Murderville. Liliana, Jordan, thanks so much for joining me on this special episode of Intercepted.

Liliana Segura: Thanks for having me.

Jordan Smith: Hi, thank you.

JS: So Jordan, let’s first just go back to April 23, 1996. Walk us through the facts as we know them of what happened on that night.

JSm: Well, what we know happened was that 19-year-old Stacy Stites was found murdered on the side of a country road just outside Bastrop, Texas, which is about a half an hour sort of east of Austin.

Newscaster: The body of 19-year-old Stacy Stites was found along a Bastrop County roadside. She’d been raped and strangled.

JSm: She was partially clothed. She was lying face up. There was a mark on her neck that looked like she’d been strangled with a piece of braided belt and there was a piece of braided belt sitting near her body. But that’s pretty much all we know for sure. But when, where, and by whom has always been an open question.

Newscaster: Family members came from all corners of Texas to comfort Carol Stites. She’s lost her youngest of five children, Stacey Lee.

Carol Stites: She was just as pretty on the outside as she was on the inside.

Newscaster: Carol Stites says she doesn’t understand who could purposely end the life of someone who had so much to live for.

CS: She had her plan and she had her marriage coming up and she had a life with Jim and now somebody’s taken that away.

JS: How did Rodney Reed end up getting arrested for this crime?

JSm: Stites’ murder went unsolved for roughly a year. And then in 1997, some cops you know, investigating sort of acting on a hunch compared DNA from sperm found in her to Rodney Reed, and it matched. They had arrested him on another unrelated charge, a drug charge and asked him did you know Stacey Stites and he says no, no didn’t know her.

Interrogator: Do you even know who she is?

Rodney Reed: No idea. I don’t know a Stacey Stites. I’ve seen that stuff on the news and stuff like that but I don’t know that person.

Interrogator: If I showed you a picture of her, would you recognize a picture that you saw in the news? Do you know this girl?

RR: No, I don’t.

Interrogator: This girl is Stacey Stites.

RR: OK.

Interrogator: Have you ever seen her before?

RR: No, I haven’t.

Interrogator: Never dated her?

RR: No, I haven’t. I don’t know this person.

JSm: But then shortly thereafter, he kind of walks that back and says, yeah, I did know her. We were having a consensual relationship. And that is what explains my DNA.

RR: You brought me in here on this drug thing or whatever. I’m coming here on this. Should I not have an attorney or something? I should have an attorney.

Interrogator: All right, somebody will be here to get you.

JSm: At that point, he was arrested and he’s never been out of prison since then.

Newscaster: Prosecutors say DNA evidence will prove Rodney Reed did it. The defense told the jury though there is plenty of reasonable doubt. It could have been Stacey’s fiancee, a police officer —

JS: Rodney Reed had been arrested in previous cases. What had he been arrested for? Why did they go and have his sperm to be able to compare, or his DNA rather to compare in this case?

JSm: There were several sexual assaults that had occurred in Bastrop and they had his DNA sort of related to one of those cases.

JS: He was never convicted of that, was he?

JSm: No, he wasn’t. He was actually charged with a rape in the late ’80s that he went to trial for and was acquitted of and then these remaining cases were never prosecuted. In fact, you know, it seems that they were barely investigated, really. I mean, there was one involving a 12-year-old girl that had happened in 1989. And you know, even up into the late 90s, when Rodney would go on trial for Stites’ murder, that was still, clearly hadn’t been a priority for cops to solve. So all those cases remained open. And once Reed was convicted of killing Stites, they kind of all said, well, look, those cases are solved as well. So they were never prosecuted.

JS: If you’re just looking at this from the perspective of, “OK, here was an unsolved murder. We have a DNA match. The accused says he doesn’t know this person. So, how is it that you know, his DNA matches the sperm found in her dead body?” And that I think is how a lot of people look at this except we need to dig into who was Stacey Stites’ fiancee at the moment of her murder?

LS: Well, it was a local cop named Jimmy Fennell, white guy, you know, Stacy Stites is white. You know, this is Bastrop in the ’90s. There are some very clear racial dynamics that set things up in a sort of way that gives rise to a lot of red flags sort of down the line.

JSm: It’s important to note that early on, Fennell was a suspect.

Jimmy Fennell: It was hard having the finger pointed at you. It was hard for them saying that, yeah, you killed Stacey, your fiance, that you did it because of these reasons, these reasons, you know, but, you know, I kept in my mind that I didn’t do it, that they would eventually find the right person.

JSm: Which makes perfect sense. Whenever there’s an intimate partner, your intimate partner is killed, of course, they’re going to look at the other person. And it’s interesting to note because they knew that Jimmy did not match the DNA they found, but so it kind of suggests that at that point, they didn’t necessarily think that that DNA was the linchpin of the case. It wasn’t until after they sort of associated with Reed that then suddenly it’s dispositive and that’s like the only factor that matters.

So early on, you know, they had focused on Fennell as a suspect and yet sort of, inexplicably never searched the apartment that they shared, which was arguably the last place she was seen alive. And their whole entire timeline of this crime really hinges on Fennell’s account of what would have happened that morning.

So, she had to work a very early shift at the grocery store starting about 3:30. He wasn’t awake when she got up to go to work, but she would have left around three and then she would have driven to work. And so based on these sort of, could have possibly happened this way story of Fennell’s they build this entire narrative and theory of the case where they have Stites leaving for work at a  normal time and getting in Fennell’s truck and driving a series of state highways towards Bastrop.

And you know, they decide that at some point somehow, somewhere they’ve never said where or how, Reed who’s on foot on the state highway or something, somewhere, somehow overpowers her and hijacks her out of the car, drives her out into the country, strangles her, rapes her, dumps her body, then drives a truck back into Bastrop, locks it up and walks away. That’s a pretty, it’s a pretty sort of fantastic theory to swallow, you know, but that’s kind of where this whole thing goes. It’s like this juggernaut based on this, like really sort of, strange and not very plausible sort of theory of the crime.

LS: This case and that prosecution and this looming execution really has to be understood in a very specific context, which is, Rodney Reed is a black man who was accused of raping and murdering a white woman in the south. And I think part of the reason that this case has really struck the kind of nerve that it has right now is that it really is an emblem of a very old story and a story about the death penalty that really is a direct legacy of racial terror lynchings in the south going back many decades.

And the reason I think it’s really important to talk about this is that if you revisit the kind of early history of the death penalty, and you sort of trace that line between lynchings and how sort of, at the very moment that sort of lynching start to fall out of favor and start to dissipate, there’s a rise in state sanctioned executions that is really defended explicitly along the same lines that lynchings always were defended — lynchings were necessary to protect white women from the sexual attacks of black men in the south. This is how they were defended. Ot was seen as a deterrent. And, you know, this isn’t just sort of a theoretical argument.

When the U.S. Supreme Court struck down the death penalty in 1972, in part over concerns that it was being handed out in a racially biased way —

Newscaster: The Supreme Court declared the death penalty unconstitutional today and spared the lives of 600 men and death row cells across the country. Here’s ABC’s Herbert Kaplow at the Supreme Court.

Herbert Kaplow: The vote was five to four against the death penalty. Justices Brennan and Marshall said it is cruel and unusual punishment and therefore unconstitutional. Douglas, he said the death penalty has been imposed disproportionately on minority groups. More than half of the 600 people now under death sentence are black. Stewart voted against the death penalty because it’s been applied in what he called a wanton and freakish manner, in other words, in not any consistent or uniform pattern. He pointed out that in the three test cases ruled on today, two of the defendants were convicted of rape, and their victims were not killed.

LS: Justice Thurgood Marshall talked about the racism of rape prosecutions specifically. You know, the death penalty was a punishment for rape in that era. And the statistics around this are really staggering when you read about them. You know, 455 people had been executed in the United States for rape since the 1930s. And out of that number 405 had been black men. So you know, we sort of tend to forget a little bit that this is sort of the animating force behind the death penalty going back, you know, early half of the 1900s. But it’s really important to remember in the context of the South in the context of the Rodney Reed case.

JS: Walk people through some of your impressions and reporting of what happened at that trial.

JSm: I mean, it starts out with the fact that there were only potentially two black jurors who both were struck by the state. So we have a jury that has no black people on it. And then we have attorneys that are court appointed who were just simply not prepared. They had essentially spent about 40 hours on the case, a month out of trial. Well, that’s just not acceptable. You know, a month before the trial, they’d only spent 40 hours. I mean, that’s just insane. They had promised in their opening statements that they were going to provide this context for the DNA, which was that there was this relationship, and it’s just stunning how they completely failed to do that, even though that was their strongest promise to the jury. And it just sort of created an opening, you know, for the state to really hammer home the significance of that DNA, which they called, you know, the smoking gun and the Cinderella slipper of the case and just hammered that home, you know, and there was really nothing to counter that narrative. So it’s kind of unsurprising that it went down the path that it did.

Newscaster: It’s devastating news for one family. News of justice and relief for another.

Carol Stites: I’m really glad that justice was served and that the system really does work.

Juror: Was not an easy decision. It was very hard, was a lot of pressure. We consider all the facts and I believe that justice was done.

TK: With 12 white jurors, you know, this is something that you expect but just like I said before, you know, I had built myself up already for this verdict that they were going to give. So it doesn’t come as any surprise whatsoever.

Newscaster: Some in this town call this case electrifying. They hope this verdict will bring some closure to all the tension and emotions they felt as this evening they put to rest the first capital murder trial this town has seen in at least 30 year. Amy, KVUE 24 News.

JSm: The other part about the trial that’s really important to understand is that Texas has a bifurcated system where you decide guilt innocence first, jury comes back and determines that and then you launch immediately into a punishment hearing where the question of whether you’ll be sentenced to death is really the only one on the table. And they basically argued during this punishment hearing that, you know, you’re irredeemable and in order to do that it is allowable that you can bring in literally every terrible thing you’ve ever been accused of. You like kicked an old lady on the street that’s coming in. You know, you stole some gum, you know, you hit a teacher coming in, coming in to show how, you know, sort of worthless you are. And here what they did was they used these unadjudicated rape cases, mere allegations, to suggest that Rodney not only committed them, but that proved that he was this sort of serial sex offender who, you know, really could not be saved and must be killed.

I do want to say that I have been criticized over the years for not focusing more on these rape allegations. My answer to that would be twofold. One, which is what’s striking when you read the testimony is that it is very clear that these women, you know, had experienced very traumatizing sexual attacks. But it’s also clear that those were not really investigated very well. And what they instead did was sort of, sweep up all these sexual assault allegations and use them, sort of, weaponize these terrorizing stories to try to put a black man to death. These were all also, you know, back to the point Liliana was making these were all also white female victims. So they were really able to play up this idea of this, like very aggressive, you know, black predator out to harm white women and you know, it worked. It totally worked.

JS: I want to fast forward from Rodney Reed getting sentenced to death to a late night in October of 2007 that you wrote about back in 2014, Jordan Smith, explain what happened to Connie Lear in October of 2007.

JSm: Connie Lear was playing cards and drinking with some friends, including her boyfriend at the time. They ended up sort of getting into an argument and were outside this apartment complex and sort of having words in a town called Georgetown, which is just north, it’s sort of a suburb. The cops are called to kind of calm the situation and that does happen. And then she gets put in a police car and instead of being driven to where her boyfriend was going to be, she is taken to a recreational area. She is pulled out of the car. She’s thrown against the back of the car and she’s raped by the cop, who is in uniform, obviously on duty. He takes his gun off of his duty belt, he puts it by her head and he rapes her. And the cop that did that was Jimmy Fennell.

JS: The cop whose fiance was murdered and who Rodney Reed is now facing potential execution for in that case?

JSm: Correct.

Newscaster: While Georgetown officers work the streets, one of their own is off the street. A grand jury returned an indictment against Sergeant Jimmy Fennell. Prosecutors alleged Fennell detained a woman in late October because of a domestic disturbance then raped her at gunpoint. He’s charged with sexual assault, kidnapping, improper sexual activity with someone in custody.

JSm: After the assault is over, he basically threatens to kill her. He says, “Look, if you ever tell anybody about this and I have to go to prison. I’m going to get out. I’m going to get my gun. I’m gonna hunt you down and kill you.” So to her credit, she actually did press forward. And that case basically unlocked some additional reports, credible reports of sexual harassment, of inappropriate touching, and potentially even one more rape committed by Fennell over the years as a cop. I mean, it’s important to understand that like, you know, other cops knew about these complaints. nobody did anything, right? So you have this predator cop walking around assaulting women, and like in Connie’s case, while on duty and wearing his uniform. So she pressed it forward and ultimately, Fennell was sentenced to 10 years in prison and he just got out last fall.

JS: Is there any move to try to get him charged with Stacey Stites’ murder? I mean, is he just walking around a free man? Is there any other evidence that’s come out recently about Jimmy Fennell?

JSm: Like I said he was considered a suspect early on. He was given polygraph exams, two of them and failed both, including on the question of whether he had strangled Stites. Now, polygraph examinations are notoriously unreliable, right? So I’m not saying it for the truth of the matter. But what happens after that is that he invokes his fifth amendment right, and he stops cooperating with the investigation. When it rolls around to trial time, he changes his tune. And he’s suddenly, you know, a witness for the state and testifying about how they just had this wonderful relationship and everything was so hunky dory and pumping up this timeline about what she would have done that morning and where she would have driven and all this stuff to sort of bolster the state’s narrative.

But then in subsequent years, as more and more evidence has kind of come out after the Lear stuff, after a lot of other things have come out about Jimmy’s behavior and propensity for violence and racism. You know, there was a hearing in 2017, which he was, you know, called to come testify and here we go again, now he’s back to claiming his fifth amendment right against self incrimination, and saying simply that he stood by his trial testimony. There are within the last, you know, month, law enforcement officers that knew Fennell and, or Stacey back in the 90s have come forward to tell stories about some really sort of disturbing behavior that they saw from him.

I mean, one case, you know, before and after the murder, and in one case after the murder at the funeral home. So in that case, the guy says at the funeral and I saw Jimmy sort of standing over the casket and saying menacingly, you know, “You got what you deserved.” And then in another case a guy who was actually friends with Fennell and with Stacey has this story about how about a month or so I think, before she was murdered, that he was over there apartment complex and Stacey had gone off to the pool. And they were standing by this barbecue pit and that Jimmy comes out with this like really stunning sort of sentence and says basically that he knows that his fiancee is fucking an N. And this guy who was sort of shocked by this in explaining why he never came forward before he said he left law enforcement and he left Bastrop, but that he still had family there. And that he was worried what would happen if his family was seen sort of perceived as going against law enforcement. I don’t think that’s an unreasonable concern.

JS: Liliana, where do things stand now and what is Rodney Reed’s best hope?

LS: The lawyers obviously, as in any death penalty case, are going to be fighting this until the very end. And so the next thing that’s happening, as far as I understand is that the Supreme Court is going to be conferencing on this case on the 15th of November, and that’s where they’re going to decide whether or not they’re going to take up any of the issues that have been raised before them.

JS: What are the specific grounds for the appeal, in this case going before the Supreme Court, Jordan?

JSm: A couple of issues actually, and one is really related to Fennell. OK, back in 2016, what happened was a cop that worked with Jimmy was interviewed by CNN’s death row stories, where he basically gave an alternate accounting of what Fennel had done the night before Stites was murdered. He had claimed that he’d been at home alone with her all night and everything was just great. And this man named Curtis Davis says, “Well, no, that’s actually not what Jimmy told me. Jimmy told me the next day after they’d found Stacey’s body that he had actually stayed out drinking the night before with some cops that he coached a little league team with.” So this is like a completely different story. And that Curtis Davis sort of interview was what prompted in part a review in 2017 where Fennell then takes the fifth again. So, one of the questions before the U.S. Supreme Court, it basically has to do with how to deal with a witness like Fennell, invoking this right against self-incrimination and refusing to testify when they’re actually being confronted with this suppressed evidence, i.e. the Curtis Davis allegation, right?

So it’s like, what do you do when you have this sort of potentially exculpatory information, and certainly one that counters this official narrative, but then you have somebody refusing to testify about it? So that’s one. And then the other question actually has to do with junk science because there was a lot of junk science sort of invoked in this case talking to how to deal with that after the fact when science that was used to convict you has been shown to be unsound and how the courts, how we should deal with that.

And of course, there is one last question, and that is, does it actually violate the constitution to execute an innocent person? It’s a long shot. I mean, it’s a real long shot.

The other thing that’s sort of pending out there is whether or not Governor Abbott, Greg Abbott, would get involved and at least stop the execution. Now, under Texas law, the governor can only issue a temporary reprieve. They do not have the power to do anything more than that absent a recommendation for clemency or commutation that comes from the Board of Pardons and Paroles. So Texas’ Board of Pardons and Paroles is like notoriously awful. Until not very long ago, they still basically faxed in their decisions about clemency. They are not required to meet. They’re not required to really do anything at all, but they’re all appointed by the governor. So the governor could, you know, obviously say, hey, give me some cover, recommend something here, right? So, that’s potentially possible.

LS: We see these examples again and again, and as we talked about this night, as I think about that sort of final question before the court this question of, you know, is it unconstitutional to execute an innocent person? It’s appalling, you know, it’s appalling that that’s a question that’s sort of a legitimate, legally unanswered question. But one thing that Bryan Stevenson always says, which is really the proper way to think about this, does so and so, does this, you know, a convicted murderer deserve to die, but the more proper sort of legitimate question is actually do we as a society deserve to kill? You know, do we deserve to kill? Why do we still have this legitimate power given everything that we know about the way that you know, the death penalty is racist, the way in which we’ve gotten it wrong over and over and over again, the way in which a state like Texas has put to death so many people with this complete sort of impunity when it comes to really confronting any of these problematic cases? I mean, it’s kind of appalling and it does frustrate me. You know, Rodney Reed came so close to execution in 2015 and it could come down to the wire again.

JS: Liliana Segura, and Jordan Smith, thank you very much for joining us.

LS: Thank you.

JSm: Thank you.

JS: Jordan Smith and Liliana Segura are both journalists at The Intercept. Check out all of their work on the case of Rodney Reed at theintercept.com. That does it for this bonus episode of Intercepted. You can follow us on Twitter @Intercepted. We’re also on Instagram @Interceptedpodcast. If you like what we do, support our show by going to theintercept.com/ join to become a sustaining member. Intercepted is production of First Look Media and The Intercept.

Our lead producer is Jack D’Isidoro, our producer is Laura Flynn. Elise Swain is our associate producer and graphic designer. Betsy Reed is editor in chief of The Intercept. Rick Kwan mixed the show. Transcription for this program is done by Nuria Marquez Martinez. Our music, as always, was composed by DJ Spooky. Until next time, I’m Jeremy Scahill.