Judicial District Court Bastrop County, Texas

IN THE COURT OF CRIMINAL APPEALS OF TEXAS AND THE 21ST JUDICIAL DISTRICT COURT BASTROP COUNTY, TEXAS

EX PARTE § Writ Cause No. 50, 961 § RODNEY REED, § § Trial Cause No. 8701 Applicant. §

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MOTION FOR DEPOSITION OF CURTIS DAVIS ______

Applicant Rodney Reed files this Motion to take the deposition of Curtis

Davis in order to fully develop the facts alleged in his Supplemental Application filed with this Court on June 8, 2016. Because Mr. Reed’s counsel was not provided with a copy of the CNN interview, and was only permitted to review limited portions of the interview, a Deposition is necessary to more fully develop the factual record regarding Officer Davis’s role in the investigation and his account of his conversations with Jimmy Fennell on April 23, 1996.

A. Mr. Reed has been provided with only limited access to Officer Davis’s interview. As discussed in the Supplemental Application, Officer Davis sat for an interview with CNN in the spring of 2016 in which he discussed the April 23, 1996 conversation in which Mr. Fennell told him what happened on the night of April 22, 2016. A CNN producer later permitted undersigned counsel Bryce Benjet and his legal assistant to view the portion of the videotaped interview in which Officer

Davis recounted his conversation with Mr. Fennell. The producer also allowed a brief review of the transcript of the entire interview. During this brief review, the producer held the transcript and paged through it in the presence of Mr. Benjet and his legal assistant. As the producer paged through the transcript, he described the subject matter of each page. Mr. Benjet was unable to read the transcript during this brief review, but could see enough over the producer’s shoulder to verify that the general description provided was accurate. The only portion of the transcript that Mr. Benjet was permitted to read in total were the pages that corresponded with video shown to him detailing Officer Davis’s conversation with Mr. Fennell on April 23, 2016.

B. A deposition is warranted so this Court may consider a more complete record regarding Fennell’s statements to Officer Davis. Because CNN has restricted access to its interview with Officer Davis, Mr.

Reed’s Supplemental Application relied only on the verification of counsel to prove what Mr. Fennell said during his interview. While this Court may rely on the allegations made in the Supplemental Application in determining whether Mr.

Reed should be granted a hearing on his claims, the record is far from ideal. For

2 example, it does not appear1 that Officer Davis was asked whether he shared Mr.

Fennell’s account of his whereabouts on April 22, 1996 to other officers investigating Stacey Stites’s murder or if he was aware that Fennell later gave a different story to police and in his testimony. Although these questions and others would certainly be appropriate in the context of a hearing on Mr. Reed’s claims, this Court’s weighing of whether the pending habeas applications meet the procedural requirements for consideration under section 5(a)(1) and 5(a)(2) of

Article 11.071 would be greatly aided with the more fulsome record that can be established through a deposition.

Nor would a deposition impose a significant burden on Officer Davis.

Officer Davis voluntarily sat for a lengthy interview with CNN, knowing that his statements would be part of a nationally televised news program. Having unilaterally offered his account to the news media, Officer Davis cannot credibly complain that a deposition covering essentially the same subject matter would impose a burden when weighed against the benefit to this Court and these proceedings by developing a complete record on which to decide the merits of Mr.

Reed’s innocence and other constitutional claims.

1 The CNN producer did not mention any such questioning when summarizing those portions of the interview which were not provided to counsel.

This Court has both the inherent and statutory authority to order depositions at this stage of the proceedings to enable habeas applicants to fully develop facts supporting claims for relief under Article 11.071 and 11.073 of the Code of

Criminal Procedure. As discussed in Mr. Reed’s pending Motion for Discovery or in the Alternative Petition for Depositions Under Rule of Civil Procedure 202, trial courts routinely grant limited discovery in habeas proceedings for the purpose of developing claims prior to the granting of a hearing. See October 19, 2015,

Supplemental Clerk’s Record at 5-41. Moreover, the Court must have the authority to grant limited pre-hearing discovery to ensure that the other rights to post-conviction review afforded through Articles 11.071 and 11.073 of the Code of

Criminal Procedure are both meaningful and not arbitrarily denied in violation of

Due Process and the Eighth Amendment. See id.; Harris v. Nelson, 394 U.S. 286

(1969); Ford v. Wainwright, 477 U.S. 399, 414 (1986); Skinner v. Switzer, 562

U.S. 521 (recognizing potential procedural due process claim for arbitrary denial of access to post-conviction DNA remedy). Absent the opportunity to ask Officer

Davis about his conversations with Mr. Fennell at a hearing, a deposition is required so that Mr. Reed is not arbitrarily deprived of his right to post-conviction review of this substantial claims in violation of Texas law and the aforementioned rights under the United States Constitution.

Respectfully submitted,

/s/ Bryce Benjet______BRYCE BENJET State Bar No. 24006829 THE INNOCENCE PROJECT 40 Worth St. Suite 701 New York, New York 10013 (212) 364-5340 (212) 364-5341 (fax)

ANDREW F. MACRAE State Bar No. 00784510 LEVATINO|PACE LLP 1101 S. Capital of Texas Highway Building K, Suite 125 Austin, Texas 78746 (512) 637-8563 (512) 637-1583 (fax)

Attorneys for Applicant Rodney Reed

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing Motion for Deposition of Curtis Davis has been served on the attorneys for the State both through the e-filing electronic service system as well as via Federal Express, on this 10th day of June 2016, addressed to:

Matthew Ottoway Bryan Goertz Assistant Attorney General Bastrop District Attorney 300 West 15th St. 804 Pecan St. Austin, Texas 78701 Bastrop, Texas 78602

/s/ Bryce Benjet______Bryce Benjet