Texas Claims It’s “Too Late” for DNA Testing That Could Get Rodney Reed Off Death Row

Now Reed is taking his fight to the Supreme Court.

Brittani Smith chants during a protest against the execution of Rodney Reed on Wednesday, Nov. 13, 2019, in Bastrop, Texas. Reed is scheduled to die later this month for the 1996 killing of a 19-year-old woman in Central Texas.  (Nick Wagner/Austin American-Statesman via AP)
Demonstrators protest the planned execution of Rodney Reed on Nov. 13, 2019, in Bastrop, Texas. Photo: Nick Wagner/Austin American-Statesman via AP

Suzan Hugen remembers the day she met Stacey Stites. It was late 1995, and Hugen was working at the H-E-B grocery store in Bastrop, Texas, when Stites walked in for her first day on the job as a cashier. Stites was hardworking, bubbly, and a “jokester,” Hugen recalled during court testimony last year. The two became friends.

Hugen knew that Stites, then 19, was engaged to a guy named Jimmy Fennell, a cop in the neighboring town of Giddings, but she also knew that something wasn’t right between the couple. She’d seen finger-shaped bruises on Stites’s arm, “like someone had grabbed her and pulled her,” she testified. When Hugen asked about the marks, Stites brushed her off and pulled down her sleeve. On another occasion, Hugen recalled Fennell picking up Stites from work. Hugen and Stites had been talking and laughing, but when Fennell arrived, Stites’s demeanor changed. “She went almost white as a ghost,” Hugen said.

And there was another thing: One day in April 1996, Hugen ran into Stites talking to a man in the produce aisle. Stites was briefly startled. “Oh, hey, Suzan,” Hugen recalled her saying, before introducing the man, Rodney Reed, as her friend. “She was very flirty with him, giggly, happy. It seemed like more than a friendship.”

Days later, Stites was murdered. “Whoever killed Stacey,” Hugen said, “I want them to pay.”

Rodney Reed was convicted and sentenced to death for the crime. But decades later, the question of who killed Stacey Stites remains unsettled.

As the state of Texas tells it, Stites was driving Fennell’s truck to work in the pre-dawn hours of April 23, 1996, when she was waylaid on the road by Reed, who the state maintains was a stranger to her. While on foot, according to the state, Reed commandeered the truck, raped and strangled Stites with a braided leather belt, and dumped her body along a country road before driving back to Bastrop and leaving the car in a school parking lot. Sperm recovered from Stites’s body would eventually be matched to Reed — evidence that prosecutors called the “Cinderella’s slipper” of the case.

Reed, now 54, has always maintained his innocence, saying that he and Stites were involved in a clandestine affair and the DNA was from a consensual encounter in the days before her death. Reed said that Fennell had found out about the relationship and threatened him: You’ll pay for this. Although Reed’s trial attorneys promised jurors they would deliver evidence of the affair, they failed to do so.

Prosecutors leaned heavily into the argument that Stites was smitten with Fennell and would never have cheated on him; the two were slated to be married just weeks after her death. A sweeping investigation by law enforcement uncovered zero evidence that Stites and Reed knew each other, prosecutors said, let alone were intimately involved. Investigators talked to “every boyfriend, every co-worker, every friend, every family member, everybody,” prosecutor Lisa Tanner told the jury. “Nobody connects them. Nobody. Folks, this secret affair was so secret that Stacey Stites didn’t know about it. That’s how secret it was — because it didn’t exist.”

Yet as the years have marched on — and Reed has faced two execution dates — a steady stream of evidence has emerged not only about the affair, but also about Fennell and his propensity for violence. Fennell’s cruelty seemed particularly aimed at women — he was sent to prison for sexually assaulting a woman while on duty and in uniform — and at people of color. Several people have recounted that Fennell knew about Stites’s affair with Reed and was furious that she was involved with a Black man.


Texas Prepares to Execute Rodney Reed Amid a Flood of New Evidence Pointing to His Innocence

Fennell has dismissed the allegations against him, denials the state has cited as it insists that its case against Reed is a righteous one. For more than two decades, the state has said that every single witness who has come forward in favor of Reed — there are dozens at this point — is not credible.

This includes Hugen, who took the stand alongside other witnesses during an evidentiary hearing in July 2021. I have been covering this case for more than two decades and have frankly lost count of the number of witnesses who have shared accounts that gut the state’s story and zero in on Fennell as a more likely killer: witnesses from law enforcement; from the grocery store where Stites worked; from within Stites’s family; and from Fennell’s days in prison. The state has discounted each of them, suggesting that they’re mistaken or perhaps lying. At last summer’s hearing, the state brought a memory expert to the stand whose testimony was designed to bolster the prosecutors’ notion that these witnesses are deluded and have been unduly influenced by years of media coverage of the case.

While it is true that human memory is tricky and false memories are more common than people think, it’s hard to buy the idea that all the allegedly fictional memories in this case would flow in one direction — that is, in favor of Reed. To date, not a single new witness has come forward in support of Fennell or the state’s version of events.

Not a single new witness has come forward in support of Fennell or the state’s version of events.

Even more problematic is the state’s disdain for potential DNA evidence that could resolve the dispute. For years, Reed has sought testing of crucial crime scene evidence, including the alleged murder weapon, which the state has repeatedly fought against. The state’s position has mostly been endorsed by the Texas Court of Criminal Appeals, which has long been criticized for its hostile attitude toward post-conviction DNA testing and defendants with compelling claims of innocence.

Still, Reed hasn’t given up. He took his fight to federal court, arguing that Texas violated his due process rights by denying his bid for forensic testing. Although the U.S. Supreme Court previously ruled that this was a valid path to post-conviction testing, the state is seeking to dismiss the suit, asserting that Reed waited too long to file his federal claim. The Supreme Court will hear the case on October 11.

FILE - In this Oct. 13, 2017, file photo, death row inmate Rodney Reed waves to his family in the Bastrop County District Court in Bastrop, Texas. Supporters for Reed, who's facing lethal injection in less than two weeks for a murder he says he didn't commit, are mounting a final push in the courts and on social media to stop his execution, which is being called into question by lawmakers, pastors, celebrities and the European Union.  (Ricardo B. Brazziell/Austin American-Statesman via AP, File)

Rodney Reed gestures to his family in court on Oct. 13, 2017, in Bastrop, Texas.

Photo: Ricardo B. Brazziell/Austin American-Statesman via AP

Above Suspicion

While Texas insists that the evidence pointing to Reed’s innocence relies on witnesses who apparently dreamed up their independent accounts, prosecutors have simultaneously refused to acknowledge that their own version of events rests on the uninterrogated assertions of a single man, Jimmy Fennell.

According to Fennell, the night before Stites was found dead, the couple shared a mostly quiet evening at their apartment in Giddings. They talked about their upcoming nuptials. They took a shower together, but did not have sex, before Stites went to bed and Fennell settled in to watch TV. The following morning, Stites left around 3 a.m. to work an early shift at the Bastrop grocery store, but she never made it to work. Fennell’s truck was found parked in a high school parking lot, and Stites’s body was found on the side of the road outside town. One piece of the leather belt she’d been strangled with was found next to the truck; a second piece was discarded near her body.

No one could explain why the only fingerprints found anywhere in the truck belonged to Fennell or Stites.

Fennell’s claim that Stites left for work around 3 a.m. ultimately dictated the timeline of the crime and the path of the investigation. But it was flawed. As it turned out, Fennell told investigators that he was asleep that morning, but 3 a.m. was the time that Stites would have left. Investigators never sought a more detailed account of the couple’s activities on the day leading up to Stites’s murder. Inexplicably, they failed to search the couple’s apartment, even though it would have been the last place she was seen alive. And although the state’s theory put Reed in the driver’s seat of the pickup, no one could explain why the only fingerprints found anywhere in the truck belonged to Fennell or Stites. Days after the murder, the state released the truck to Fennell, who immediately got rid of it.

For a brief period following the murder, Fennell was a suspect. He faced two polygraph exams and failed them both, including when asked whether he had strangled Stites. Fennell then refused to cooperate with police, invoking his Fifth Amendment rights. It wasn’t until after Reed was arrested that Fennell agreed to testify about his loving and committed relationship with Stites — and the fact that she didn’t know Rodney Reed.

None of this appears to have given the state pause about its reliance on Fennell, nor has the flood of witness testimony suggesting that the state got it wrong. One particularly disturbing account came from a Dallas-area police officer, who said that during a law enforcement training, Fennell said he would strangle Stites if he ever caught her cheating and would use a belt to avoid leaving fingerprints around her neck.

And then there is Connie Lear. In 2014, she shared with me terrifying details of being raped by Fennell seven years earlier, while he was on duty. Fennell took out his gun and placed it near her head during the attack, she recalled. When it was over, he threatened to kill her if she told anyone. Despite her fears, Lear did report the attack, and Fennell’s arrest prompted others to come forward with similar allegations. Fennell took a plea deal for his attack on Lear and was sentenced to 10 years in prison.

What They Knew

For years, the courts asserted that none of these developments undermined their confidence in Reed’s conviction. In one opinion, the Court of Criminal Appeals noted that while Fennell’s conduct may have been “despicable and reprehensible,” it did not exonerate Reed.


Texas Court Halts Rodney Reed Execution Over Questions of Withheld Evidence, False Testimony

Finally, however, amid a wave of national publicity days before Reed was scheduled for execution in November 2019, the Court of Criminal Appeals issued a stay, sending the case back to the trial court for further vetting on three issues: whether the state had withheld exculpatory evidence from Reed’s defense, whether it had offered false testimony at Reed’s original trial, and whether Reed was actually innocent.

That mandate led to the nine-day evidentiary hearing in Bastrop in July 2021, during which at least a dozen witnesses offered testimony pointing to Reed’s innocence. Two men who were incarcerated with Fennell testified that he’d confessed to killing Stites. Michael Bordelon said that Fennell told him he’d “taken care” of Stites “and that damn ‘N’ is going to do the time.”

Former law enforcement officers testified that Fennell was mad about the affair. Just weeks before Stites was murdered, Wayne Fletcher, a Bastrop County sheriff’s deputy, went to a barbecue at the apartment complex where Fennell and Stites lived. It was clear that Fennell and Stites were not getting along, he recalled. After Stites left, Fletcher said, Fennell told him that “he thinks that she was fucking a n—–.”

Friends of Stites’s from work said that they’d met Reed at H-E-B and that Stites was unhappy in her relationship with Fennell. Brenda Dickinson said Stites told her that Fennell had become jealous and that she was “scared” of him. She also testified about seeing Stites flirting with a man at the store. “I said, ‘Who’s that secret admirer of yours?’” she recalled. Stites got kind of “giddy” and said it was her friend Rodney.

Prosecutors with the Texas Attorney General’s Office failed to present any meaningful evidence at the hearing to challenge these accounts. Instead, they offered up the memory expert to testify about the malleability and fallibility of human memory. The thrust of the state’s case was to question the defense witnesses’ motives. Why hadn’t they come forward earlier? And since they hadn’t, how could their memories be trusted?

There are myriad reasons why people might not have come forward sooner. Some distrusted local law enforcement and were afraid to say what they knew. Others didn’t realize that the information they had was relevant. Still, at least three former grocery store employees did come forward before Reed’s 1998 trial with information about Stites and Reed knowing each other — information the state failed to provide to the defense as required by law. One of those statements came from Suzan Hugen.

In a recent interview, Hugen told me that after Stites’s murder, she didn’t realize that what she knew was important. It wasn’t until later, when she saw news about Reed’s arrest and the state’s contention that he and Stites were strangers, that she realized she had to tell someone. “I’d just got home from work and the news was on, and I was like, oh, I want to hear this,” Hugen said. “The first thing they said was that a man named Rodney Reed had been arrested.” Hugen didn’t put “two-and-two together until I saw his face,” she said. “And they were saying that apparently Rodney Reed and Stacey Stites didn’t know each other. And I was like, that’s not right.”

“In the back of my head I was thinking that something would happen to her, but not death.”

The next morning, on her way into work, she approached Bastrop police officer Paul Alexander, who had been part of the investigation. She told him about seeing Stites and Reed together in the store. She remembered the encounter well, she told me, because it stood out. “I could see from a distance that they were all flirty and it kind of shocked me because this is a very white town, and this is a white girl engaged to a white cop. And she’s flirting with this Black man,” she said. Hugen said she knew that Fennell was abusive, and the situation worried her. “Somewhere in the back of my head I was thinking that something would happen to her, but not death.” Alexander asked her to fill out a report, which she did, and said he would turn it in. She never heard back from anyone, and Alexander has since died.

Jimmy Fennell also testified at the 2021 hearing. He admitted to attacking Lear but professed himself a changed man. Where his history with Stites was concerned, he insisted that theirs was a flawless relationship; they never even argued. “What normal people call fights is not what we had,” he testified. “We’d have, you know, maybe a discussion about something. We never fought.” As for the witnesses who said otherwise, “As far as I’m concerned, they’re all lying.”

After the hearing, lawyers representing both sides were asked to file briefs containing their takeaways from the testimony, including which witnesses were credible and why, along with a discussion of how relevant law should be applied. The documents are intended to aid the judge tasked with issuing a ruling.

Judge J.D. Langley adopted the state’s brief nearly verbatim. This isn’t supposed to happen and produced an absurd result: Langley concluded that when it came to the substance of their testimony, none of Reed’s witnesses were credible. Instead, Langley credited Fennell as the truth-teller. The judge’s conclusions also adopted outright errors, including a finding that Hugen never told anyone about what she knew, even though the report she provided to police was found in the state’s files.

Women march with signs during a protest against the execution of Rodney Reed on Wednesday, Nov. 13, 2019, in Bastrop, Texas. Protesters rallied in support of Reed’s campaign to stop his scheduled Nov. 20 execution for the 1996 killing of a 19-year-old Stacy Stites. New evidence in the case has led a growing number of Texas legislators, religious leaders and celebrities to press Gov. Greg Abbott to intervene. (Nick Wagner/Austin American-Statesman via AP)

Demonstrators march with signs during a protest against the execution of Rodney Reed on Nov. 13, 2019, in Bastrop, Texas.

Photo: Nick Wagner/Austin American-Statesman via AP

Forensic Error

The state’s case against Reed relies on the idea that Stites was raped and killed within a narrow window of time: between 3 a.m., when Fennell says Stites would have left for work, and 5 a.m., around the time that Fennell’s abandoned truck was found.

Forensic experts have called that timeline into question. Decomposition changes to Stites’s body, experts say, show that Stites was killed hours earlier, when, by Fennell’s own account, he was alone with her in their apartment.

And then there is the significance of the sperm that provided the DNA match to Reed. In 1998, the state’s witnesses testified that the fact that intact spermatozoa were recovered from Stites meant that she’d had sex no more than about 24 hours before her death. And since Fennell said the couple hadn’t had sex, the theory goes, the sperm had to come from her killer.

“The district court abdicated its role entirely.”

The specificity about how long the sperm would remain intact seamlessly lined up with the timeline the state needed for its theory of the crime. Twenty years ago, I asked a Texas medical examiner unconnected to the case to review the evidence. He was uncomfortable with the state basing its timeline on sperm evidence, which, he told me, is “never very precise.”

In the intervening years, noted pathologists have agreed that the trial testimony regarding the sperm was false, and in 2018, both a state crime lab and a private DNA lab conceded that their employees had provided testimony that was in “error” and not scientifically supported.

Still, Langley’s one-way credibility determinations extended to the medical experts who testified at the evidentiary hearing: Only those who testified for the state were deemed credible.

Reed’s lawyers are challenging Langley’s ruling in the Court of Criminal Appeals, claiming that the district judge failed to do his job. “This court remanded Mr. Reed’s case for further development before the district court, expecting a neutral, unbiased, independent assessment of the factual record and witness credibility,” they wrote. “Instead, the district court abdicated its role entirely.”

The state has not filed a response.

The Fight Over DNA

While the state has emphasized the importance of the DNA evidence linking Reed to the sperm — despite questions about its significance to the commission of the crime — it has argued against the idea that testing various crime scene items for DNA might result in probative evidence.

During a 2014 hearing, the state argued that much of the evidence — including the clothes Stites was wearing and the belt used to kill her — had been touched by too many people at trial and wasn’t stored properly by the state, rendering it unsuitable for testing. The idea being that whatever DNA might be extracted would produce a mixture of profiles too confusing to be of value.

The district court and the Court of Criminal Appeals agreed, denying Reed’s request to test those items. The courts also nixed testing the assortment of less consequential evidence that remained, noting that without the critical crime scene evidence that had allegedly been contaminated, any DNA found wouldn’t be persuasive enough to cast doubt on Reed’s conviction.

It is not entirely surprising that the state might have mishandled and improperly stored critical pieces of evidence. That’s not Reed’s fault, however, and the state should not benefit from its failures by making them the basis of its argument against DNA testing.

What Reed wants to know is if Fennell’s DNA is on any of the evidence.

And while the argument that possible contamination would produce a hard-to-decipher DNA result might seem like a reasonable basis on which to deny testing, it’s really a red herring. No one is looking for a random, unknown DNA profile. What Reed wants to know is if Fennell’s DNA is on any of the evidence. Likewise, one would think the state would want to find out whether Reed’s DNA pops up anywhere. The DNA profiles of both men are known, and DNA technology is such that, even in a complicated mixture, an analyst can tease out relevant information.

But the state’s lazy arguments resonated with the Court of Criminal Appeals, which has a long and antagonistic relationship with the state’s post-conviction testing law. CCA rulings have repeatedly forced lawmakers to revise the statute to prevent the court from narrowing its impact.

And that brings us to the federal courts. In 2019, Reed filed a federal civil rights suit arguing that the CCA’s application of Texas’s post-conviction DNA law violated his right to due process. It’s an approach to obtaining testing that the U.S. Supreme Court approved in 2011 in a case involving Hank Skinner, another man on Texas death row, whose access to DNA testing had been blocked by prosecutors and the CCA.

But instead of allowing Reed’s case to move forward, the state is fighting to have it dismissed, arguing that the statute of limitations has expired. Under the statute, Reed had a two-year window to file his federal claim after he was denied testing. According to the state, that means Reed should have filed years ago, after the state district court first denied DNA testing in 2014. Reed argues that filing then would have been premature because the CCA hadn’t yet considered his appeal — meaning there was no final decision on which to base his suit. It wasn’t until 2017 that the CCA issued its final ruling; Reed’s suit was filed less than two years later.

This may sound like a ludicrous fight to be having when a man’s life is at stake, and it is. Well-established rules generally require state cases to be resolved before a person can seek relief in federal court. And being resolved means having a final judgment from a state court of last resort — for criminal cases in Texas, that’s the CCA. The system is designed to prevent federal interference in state court matters.

Maintaining this order “avoids friction and honors the prerogative of state courts to definitively construe their statutes before federal courts start issuing orders regarding their constitutionality,” a group of federal courts scholars wrote in an amicus brief.

Nonetheless, Texas argues that Reed should have sought federal relief after the district court denial in 2014 because there is “no provision of Texas law” that required him to appeal that denial to the CCA. The 5th U.S. Circuit Court of Appeals sided with the state, teeing the matter up for the Supreme Court on October 11.

The question before the court is technical and relatively narrow: When, exactly, does this statute of limitations clock begin to run? But it has serious ramifications for defendants, particularly death row defendants in Texas, where accessing post-conviction DNA testing has long been a crapshoot.

And DNA testing in this case could finally provide answers to many lingering questions, including the most important: Who killed Stacey Stites?

That’s something that Suzan Hugen wants to know too. Stites was kind, funny, and nonjudgmental, she told me. “She looked at people from their soul.” Hugen is angry that the state withheld her statement from Reed’s defense. “If all of our statements would’ve been presented, it might’ve been different.”

The prosecutor who cross-examined Hugen at the hearing tried to suggest that her memory had been tainted by media coverage or talk among the grocery store employees, but Hugen stood firm. She said she didn’t pay attention to rumors and didn’t follow Reed’s trial. She just wanted the facts to come out. “I’m only here to tell you what I know,” she testified. “I can’t speculate on who did it, who didn’t. I just know that Rodney and Stacey were friends.”

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