Defense lawyers had argued that newly discovered evidence bolstered their theory that Stacey Stites was killed in 1996 by her fiancé, Jimmy Fennell, not Reed.
They pointed to a 2016 TV interview given by Curtis Davis, who was good friends with Fennell and Stites, in which Davis recalled Fennell saying 20 years earlier that he had gone out drinking and returned to the Giddings apartment he shared with Stites between 10 and 11 p.m. the night before she died.
Fennell had told investigators that he returned to the apartment around 8 p.m. and was with Stites until she left for work around 3 a.m.
During a four-day hearing in Bastrop in October, defense lawyers argued that Davis’ recollection, when combined with recently developed forensic evidence, refuted the prosecution theory that Reed killed Stites between 3 and 3:30 a.m. on April 23, 1996, as she drove to her job at a Bastrop grocery store. Instead, they argued, the evidence shows that Stites was killed before midnight, making Fennell the only likely suspect.
Visiting Judge Doug Shaver, however, disputed the significance of the evidence in findings of fact that were dated Jan. 5 but filed Monday in Bastrop district court.
Shaver noted that Davis testified during the October hearing that Fennell never provided a specific time of his return home and that Davis surmised it was after 10 p.m.
Davis’ memory also proved to be unreliable several times during his testimony at the October hearing, the judge wrote.
In contrast, Shaver said that Carol Stites — the mother of Stacey Stites, who lived in the same apartment building as her daughter — credibly testified that Fennel had arrived home “right before dusk,” which would have been around 8 p.m.
Shaver’s findings will be sent to the Texas Court of Criminal Appeals, which will have the final say on whether Reed, 50, gets a new trial.
‘How can you deny such truth?’
Defense lawyer Bryce Benjet said late Monday that he remained hopeful that the appeals court would reject Shaver’s findings, which are advisory, after examining the new evidence.
“We have now proven everything the Texas Court of Criminal Appeals asked us to show, and we look forward to presenting this substantial case to the court,” he said. “Over the past 20 years, the evidence of Mr. Reed’s innocence continues to mount, and we are confident that he will ultimately be vindicated.”
Sandra Reed, the inmate’s mother, was distraught outside her Bastrop home Tuesday, saying she was disappointed with the ruling.
“With all the evidence that has been presented, how can you deny such truth? Twenty years of someone’s life, innocent. How can you do damage control?” she said. “We are optimistic. We’re going to keep the fight, keep the faith, keep doing what we’ve been doing because it’s not over until it’s over.”
Reed was 10 days from execution in February 2015 when the appeals court stepped in to order a closer look at his request for modern DNA testing. Last year, the court unanimously denied that request, ruling that the possibility of cross-contamination limited the usefulness of most of the items he wanted tested. Reed plans to appeal that decision to the U.S. Supreme Court.
A separate appeal on Davis’ statements led to October’s hearing, during which defense lawyers introduced testimony by Dr. Michael Baden, a renowned forensic pathologist who concluded that Stites had been killed before midnight, disputing conclusions that she had been strangled shortly after 3 a.m.
Baden said evidence showed that Stites had been dead for several hours before she was driven to Bastrop in the passenger seat of a pickup that was found several miles from where her body had been left by the side of a rural road.
There was a mucus-like substance found on the passenger side floorboard — discharge from the nose and mouth that is related to decomposition and takes three to four hours to develop, Baden said. In addition, crime scene photos and videotape revealed blood had pooled in the front of Stites’ body — “fixed lividity” that shows Stites had lain face down for at least five hours before her body was left on a rural roadside in an upright position, he said.
‘An alternative explanation’
Benjet argued that the forensic evidence and Davis’ conversation with Fennell introduced enough uncertainty to order a new trial for Reed.
But in his findings, Shaver said defense lawyers failed to show that Baden’s testimony could have swayed jurors had it been presented at Reed’s trial.
“Baden’s opinions … would not have affected the outcome of trial because they simply present an alternative explanation that the jury could have rejected, the evidence of (Reed’s) guilt was strong, and (defense lawyers) presented no credible evidence of a consensual relationship between he and Stites, which would have been needed to explain why his semen and saliva were found on a dead woman,” Shaver wrote.
In addition, he wrote, jurors were unlikely to have been swayed “even if Fennell was incorrect about the time he arrived home” because defense lawyers forcefully pointed to Fennell as a viable suspect during Reed’s 1998 trial, but the jury rejected the allegation.
Fennell, who is serving a 10-year prison term for kidnapping and sexually assaulting a woman in his custody as a Georgetown police officer in 2007, declined to testify during the October hearing, but his lawyer said Fennell continues to maintain his innocence in Stites’ death.
Fennell’s projected release date is Sept. 12, prison records show.