Bonus tracks from Reasonably Suspicious interview with #RodneyReed's attorneys: Why all the forensics from his case have been discredited

For the October Reasonably Suspicious podcast, my co-host Mandy Marzullo and I interviewed attorneys for death-row inmate Rodney Reed, who is scheduled to be executed on November 20th. Despite this apparent failure, Bryce Benjet of the national Innocence Project and Quinncy McNeal of Mayer-Brown in Houston are in fact excellent lawyers, and their habeas-corpus-phase deconstruction has left little evidence remaining from the prosecution's case that convicted their client.

Regardless, Reed's execution looms.

We published the first part of the interview on the main, monthly podcast in October. Now, here's the full interview, including the final portion describing how all of the forensic evidence in Reed's case has evaporated.


If you already listened to the first part on the podcast, part two of the interview starts at the 11:40 mark.

Bottom line, the state's case hinged on two prongs: 1) forensic testimony that Reed must have had sex with victim Stacey Stites soon before her death, and 2) the fact that only friends of Reed, not Stites' acquaintances, corroborated his version that the two were engaged in an illicit affair.

Now, a re-investigation of the case by Quinncy McNeal has uncovered several additional witnesses who corroborate the relationship between Reed and Stites, none of whom had any relationship with Reed whatsoever. Indeed, after this interview was conducted, a witness came forward who says Stites' fiancee, Jimmy Fennell, confessed to killing her while in prison.

Meanwhile - and this is the portion of the interview that wasn't included in the October podcast - all of the prosecution forensics in the case have been discredited. The defense has secured retraction letters from the former Travis County medical examiner and the DPS crime lab saying the testimony provided against Reed at trial was wrong. If jurors had heard the corrected forensic testimony, much less the independent corroboration of his and Stites' relationship, Rodney Reed almost certainly would never have been convicted in the first place.

With evidence of Reed's likely innocence mounting, the decision whether he will live or die is up to Gov. Greg Abbott and the Board of Pardons and Paroles. They have less than two weeks to decide. Twenty-six Texas House members - 13 Rs and 13 Ds - have asked the Governor to commute Reed's sentence.

For more background, including the best exposition of recent evidence in the case, see Reed's "clemency petition." See also the Texas Tribune's latest coverage.

Find a transcript of our conversation below the jump:

Transcript: Interview with Bryce Benjet and Quinncy McNeal, attorneys for Rodney Reed, October 30, 2019.

Scott Henson:                    Rodney Reed is scheduled to be executed on November 20th for a crime he likely did not commit. Unless the US Supreme Court intervenes, only governor Greg Abbott and the Board of Pardons and Paroles can spare his life. Mandy and I sat down with Reed's attorney's Bryce Benjet of the Innocence Project and Quinncy McNeal who works at a civil litigation firm Mayer Brown in Houston. Here's how they described the evidence against Reed in light of corrected forensic testimony and new witnesses corroborating Reed's version of events.

Scott Henson:                    Rodney Reed on death row for the murder of Stacey Stites, a woman with whom he has always maintained he was having an affair. Tell us why you think her fiance Jimmy Fennell is the real perpetrator, Bryce.

Bryce Benjet:                     Well, after the murder, police quickly focused on Jimmy Fennell, who was the victim's fiance as a likely suspect. They investigated him. They brought him in for interrogations. When he testified at the trial, he talked about how these were aggressive interrogations where they yell at him, tried to get him to confess to the murder. He was subjected to two polygraph examinations in which he was found deceptive on questions about whether he committed the crime. When he was confronted with that, he took the Fifth, stopped cooperating with the investigation. After Rodney Reed was put on trial, however, he did testify in a manner that implicated rape.

Bryce Benjet:                     What we've found out about Jimmy Fennell over the years has confirmed every suspicion that the police had back then. When we looked into his history, there was complaints about racial discrimination and violence as a police officer, even before the murder. After the murder, his woman he dated, came forward and said, "Yeah, he was virulently racist." He would object to her even visiting a black hairdresser. When she broke things off with him, he stalked her. So this was a pattern that we saw and I've been working on this case since 2002, and over the years I've been investigating this. I remember several years after I took the case, I hear on the news one day that Fennell has been arrested. Lo and behold, he ends up being convicted after being charged with kidnapping and sexual assault of a young woman who he was dispatched to help.

Bryce Benjet:                     So here we have, 2006 he's alleged to have committed this sexual assault and rape, pleads guilty, ends up serving 10 years in prison for this crime. When the Texas DPS investigates him, they found that this was a pattern. There were other corroborated allegations of sexual assault, other misconduct going back for years. So this is somebody where he's initially suspected of the murder. They dropped it because of Reed's DNA. But lo and behold, we find out that this is part of a long standing pattern of misconduct. That's something we certainly want the courts to investigate. This is a person that had motive. As part of our investigation, we've revealed, and this was Mr. Reed's defense the entire time, he has always said that he was having a relationship with Stacey Stites. Through the incredible investigative work that Quinncy McNeal has been doing on this case, we found a number of witnesses who have no relationship to the Reed family, no reason to come forward other than that they know the truth, that they could say that they knew something about this relationship.

Scott Henson:                    Good for you, Quinncy. Tell us about those new witnesses. Tell us about the new evidence that you've uncovered.

Quinncy McNeal:             Sure, Scott. I'm happy to. First of all Scott, thank you and thank you Mandy also for shining a light on this important case. We have heard from witnesses and they have said some things that we find compelling and I just want to share with you some of those things. We have heard from, for example, within the last three or four weeks, in fact, since the execution date has been established, we've heard from three witnesses and I'll mention we've heard from more than that, but there are three in particular I want to talk about in this podcast. First of all, we've heard from the former partner of Jimmy Fennell's with the Bastrop County Sheriff's Office, a partner with whom he worked and was close to. That partner has shared with us that in the weeks before Stacey was murdered, Jimmy Fennell told this partner that he thought, that is Jimmy Fennell thought that Stacey was sleeping with a black man, and that's to put it charitably because he used the racial epithets according to the memory of this partner.

Quinncy McNeal:             We think that is chilling. We think those sorts of words provide compelling evidence of motive for Mr. Fennell to have committed this crime. We've also heard from a sheriff’s deputy at a neighboring county and this sheriff’s deputy ... came forward to say that he witnessed at the funeral of Stacey Stites, Stacey Stites' funeral, he witnessed Jimmy Fennell walk to the casket of Stacey Stites and say something along the lines of, "You've got what you deserve," staring down at her at her dead body. Those we think are compelling and chilling. We've also heard from a salesperson, an insurance salesperson, all three of these, again, since the execution date has been set, people coming forward. This salesperson tells us that she witnessed Jimmy Fennell threatened Stacey in her presence in November of 1995.

Quinncy McNeal:             To flesh this out a little bit, the saleslady was speaking Stacey Stites and Jimmy Fennell as well, and she was offering insurance to Stacey Stites, offering to sell insurance to Stacey Stites. Stacey made a comment along these lines, "I'm pretty young, I don't need any insurance." Jimmy Fennell then sort of corrected her in a very abrupt way and aggressive way according to this sales lady and said, "You'll need insurance." She says something to the effect of, "If you cheat on me, I will kill you and no one will know that I did it." So here again, these are witnesses who've come forward with testimony, eye witness accounts that we find to be compelling and worthy of the court's attention.

Scott Henson:                    Isn't it the case that a couple of her coworkers, she worked with the HEB there, a couple of her coworkers have also given some corroboration that they were having an affair.

Quinncy McNeal:             Scott, that's exactly right and I think that's important because these are people who have no association with Reed. These are people who knew Stacey Stites and they have come forward and said that. For example, there are two who worked with her at HEB and these two individuals of HEB have said they were aware of a relationship. Specifically, one woman says that Stacey Stites spoke to her in a break room and talked to her. Stacey Stites talked to her about the relationship that she had with a black man named Rodney. A second witness, a second HEB employee who knew Stacey Stites has come forward and said that he physically saw Stacey Stites and Rodney Reed together and knew of that. Then we've also heard from a cousin of Stacey Stites who's come forward and said that he physically saw Stacey Stites and Rodney Reed together. So, at the trial that was ... What was said was that there wasn't a relationship. Now what we see is compelling evidence that in fact all along Rodney Reed's statements about there being in a relationship were true. That's what the evidence shows.

Amanda Marzullo:           Excellent. Then in addition to the evidence of the affair and motive that Jimmy Fennell may have had, isn't there also new forensic evidence that places him with her at the time of death?

Bryce Benjet:                     Yeah, so the state's case in this matter rested on two pillars. They had the accusation that Stacey Stites and Rodney Reed were strangers and that there was no relationship, and therefore also in light of some what we now know is faulty forensic evidence that the presence of Rodney Reed's DNA on vaginal swabs taken from the body was from a sexual assault that took place contemporaneous with the murder. That's what the jury heard. So where Rodney Reed is saying at the trial that, "I was having this affair with Stacey Stites," the jury that heard the state's forensic evidence couldn't credit that because they were told without contradiction that he sexually assaulted Stacey Statis contemporaneous with the murder.

Bryce Benjet:                     Now that we've investigated this case for years, we know that none of that is true. We've talked to Roberto Bayardo, who is the Travis County medical examiner, conducted the autopsy, testified at trial. He has recanted his opinions. He now says the fact that he just saw a small amount of semen on the sample showed that this was consensual sex that took place around a day before the murder. We've presented this to the agencies that employed the experts that testified for the state, the two others, and they have recanted the same type of testimony that said that the semen that they found was fresh. Now they say, "Well, that actually could be around for up to three days."

Bryce Benjet:                     So everything that the jury heard to convict has been recanted and in replacement for that, we have actually presented this case to three of the most qualified, experienced forensic pathologists in the country, Michael Baden, Werner Spitz, LeRoy Riddick, and each of these three forensic pathologists have said that it is impossible for Rodney Reed to have murdered Stacey in the two hour window that the state presented to the jury, and in fact that the time of death was consistent with a time before midnight when Jimmy Fennell testified at the trial he was at home alone with Stacey. This is very important because the condition of the body actually shows that she was dead for a period of four to six hours before she was even left at the scene where she was found, which makes it impossible for her to have been on her way to work and then been abducted and murdered.

Scott Henson:                    Hey folks, this is Scott Henson, author of the blog Grits for Breakfast and executive director at Just Liberty. You are listening to an interview my cohost, Amanda Marzullo and I conducted with attorneys for Rodney Reed, a death row inmate scheduled to be executed on November 20th. You just heard the part of our conversation that aired on the October, 2019 episode of Just Liberty's Reasonably Suspicious podcast. The next segment describes how all the forensic testimony used to convict. Mr. Reed has fallen apart with experts who testified at trial and even the DPS Crime Lab issuing letters of retraction. Here's the rest of our conversation. Thanks for listening.

Scott Henson:                    Wasn't she found in Fennell's pickup truck, is that correct?

Bryce Benjet:                     Well, she was transported in Fennell's pickup truck and we know she was dead in the truck because there's some decompositional fluid found there.

Scott Henson:                    Got it.

Bryce Benjet:                     Which again takes hours to develop. So the state's theory was that she leaves her house at around 3:00 AM in the morning. Her truck is found with this material at 5:23 AM so that's a two hour window roughly. Again, where it takes more time than that for this purge to develop in the truck, we know she was dead long before the state alleged.

Scott Henson:                    By the purge you mean there's decompositional fluids that a dead body emits sometime after death? Is that right?

Bryce Benjet:                     Yeah. So once a person dies, the body begins to break down immediately. So there are certain signs that you can see and forensic pathologists look at to determine how long that person has been dead. This sort of viscous fluid that they found in the truck is something that takes hours to develop. The other very important factor is what's called lividity, and that's where blood pools with a gravity. So if you die laying on your back, you're going to have this red discolorization where you were laying. So if you die on your back, the blood pools to your back and you're going to see this red blotchy patterns on your back. Now if a body's turned over within an hour or so, that blood then migrates with gravity and goes to the front if you were turned over on your front.

Bryce Benjet:                     What we see here is that Stacey Stites is laid out on her back, but that red discolorization, that that pooling of the blood is on her front. That can only happen if you've been dead for a period of about four to six hours before you were laid on your back. So again, that is evidence that Stacey Stites was dead for four to six hours before she left at the scene of the crime, which again, where the state's theory was that she leaves for work and is dead in this two hour window. That's impossible.

Amanda Marzullo:           Isn't it also sort of lividity used by forensic investigators usually to tell whether bodies are moved?

Bryce Benjet:                     Yeah, that is like crime scene 101. If you want to find out whether this is the scene of the murder or if this is the scene of where the body was moved to, that is the key factor to look for. That apparently wasn't done here.

Scott Henson:                    So has the state offered any rebuttal to this new forensic evidence? I mean, if all of their experts have recanted, is there any remaining theory of the crime that they're saying is still valid?

Bryce Benjet:                     When we have presented this evidence, and this evidence has been out there now for going on five years. Not a single expert has testified for the state to contradict anything that our experts have said. In fact, every expert who gave testimony implicating Reed in a sexual assault and murder has recanted their testimony. There is simply no evidence left other than this sort of vague notion that a black man and a young white woman would not be having a relationship and that is certainly not the kind of evidence that we ought to be executing somebody about.

Scott Henson:                    So you have petitioned to governor Abbott to give a 30 day reprieve. Tell us what is in the power of the governor to do here? What are you asking him to do? The role of the Parole Board. Give us a sense of how this is going to play out over the next 30 days. His execution is scheduled for November 20th. That's just right around the corner. So what would you like to see happen?

Bryce Benjet:                     We've asked the governor to grant what's called a 30 day reprieve. In Texas, the governor's powers initially are limited. There has to be a process at the Board of Pardons and Paroles before the governor can grant a final clemency in a matter. But what we've said to the governor is that new evidence continues to develop. As Quinncy was talking about, several witnesses have come forward only in the last few weeks, and so we think it is appropriate and necessary that the governor grant a 30 day reprieve so that the Board of Pardons and Paroles can fully investigate this case and recommend a commutation of the sentence.

Bryce Benjet:                     Because again, where there is this kind of significant evidence that Rodney Reed didn't commit the crime, we need to stop and actually take a look at this thing. When it's been through the courts, what we've found is that some of the most significant evidence has been essentially cast aside for procedural reasons and not on the merits. So it's time for somebody to really dig into this, take a look, because anybody who really takes a look at this with a fair mind is going to come to the conclusion that Rodney Reed did not commit this crime.

Scott Henson:                    Since we recorded this conversation, Rodney Reed's cases become a true cause celebre with stars from Rihanna to Kim Kardashian to Questlove and Dr. Phil calling for Governor Greg Abbott to commute his sentence. In addition, other witnesses have come forward, including a man in a white supremacist prison gang from whom Jimmy Fennell allegedly sought protection while he was incarcerated. This man claims Fennell confessed while in prison to killing Stacey Stites. The Board of Pardons and Paroles and governor Abbott have until November 20th to make a decision.

Transcribed by Rev.com, with minor editing for spelling and clarity by Scott Henson.