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Writ of Habeas Corpus ______ IN THE COURT OF CRIMINAL APPEALS OF TEXAS AND THE 21st JUDICIAL DISTRICT COURT BASTROP COUNTY, TEXAS EX PARTE § Writ Case No. 50,961 § RODNEY REED, § § Trial Cause No. 8701 Applicant. § _________________________________________________________ APPLICATION FOR WRIT OF HABEAS CORPUS _________________________________________________________ THIS IS A DEATH PENALTY CASE 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 TABLE OF CONTENTS PAGE INTRODUCTION ..................................................................................................... 1 FACTUAL BACKGROUND .................................................................................... 4 I. NEW EVIDENCE FURTHER INCULPATES MS. STITES'S FIANCÉ IN HER MURDER. .......................................................................................... 4 A. Mr. Fennell Confessed To Killing Ms. Stites Because She Was Having An Affair With A Black Man. ....................................................... 4 B. Mr. Fennell Threatened To Kill Ms. Stites If He Caught Her Cheating On Him. ....................................................................................... 6 C. Mr. Fennell Discovered That Ms. Stites Was "Messing Around" On Him With A Black Man. ...................................................................... 7 D. Mr. Fennell's Directed Inculpatory Statements At Ms. Stites's Body At Her Funeral. ........................................................................................... 9 E. More Evidence That Mr. Fennell And Ms. Stites's Relationship Was Not The Happy One Presented At Mr. Reed's Trial. ....................... 10 II. THE INVESTIGATION. ................................................................................... 13 A. The Early Investigation Of Ms. Stites's Disappearance And Murder. ..................................................................................................... 13 B. Mr. Fennell Was The Primary Suspect For Months Even Though He Was Not A DNA Match. .................................................................... 18 C. Once Mr. Reed Was Identified As The Source Of The DNA, The State Dropped Mr. Fennell As A Suspect And Focused Only On Convicting Mr. Reed. ............................................................................... 25 D. The Trial. .................................................................................................. 26 III. MR. REED HAS DISPROVEN EVERY ASPECT OF THE STATE'S FORENSIC CASE AGAINST HIM. .............................................................. 31 A. The Length Of Time Spermatozoa Can Remain Intact. ........................... 31 1. Dr. Roberto Bayardo, M.D. ...................................................... 32 2. Karen Blakely. .......................................................................... 35 3. Meghan Clement ....................................................................... 36 4. The Forensic Evidence Proves That The State's Evidence As To The Length Of Time Spermatozoa Can Remain Intact Was False. ....................................................................... 39 B. Forensic Evidence Proves That Ms. Stites Was Murdered When Mr. Fennell Claimed The Two Were Alone Together. ............................ 40 1. Patterns of Post-mortem Lividity Indicate that the Body was Moved 4-6 Hours After Death. .......................................... 42 2. Rigor Mortis Indicates Longer Post-Mortem Interval .............. 44 3. Decomposition Evidence Demonstrates a Longer Post- mortem Interval and Shows that Ms. Stites was Moved in the Truck Several Hours After Her Death. ............... 46 C. The State's Evidence that Mr. Reed's DNA Was Associated With A Sexual Assault Is False. ............................................................................ 47 D. Evidence That The Crime Scene Was Staged To Look Like A Sexual Assault. ................................................................... 48 IV. PROOF THAT MR. REED AND MS. STITES WERE INVOLVED IN A SEXUAL RELATIONSHIP .................................................................. 49 A. Witnesses Discredited Because They Knew Mr. Reed. ........................... 49 B. Family And Friends Of Ms. Stites Have Come Forward To Attest To Knowledge Of A Relationship Between Mr. Reed And Ms. Stites. ........................................................................................................ 51 1. Alicia Slater. .............................................................................. 51 2. Lee Roy Ybarra. ........................................................................ 52 3. Rebecca Peoples. ....................................................................... 53 ii 4. Calvin "Buddy" Horton. ............................................................ 54 V. MR. FENNELL'S DISCOVERY THAT MS. STITES WAS HAVING AN AFFAIR WITH MR. REED PROVIDED A POWERFUL MOTIVE FOR MR. FENNELL TO DO WHAT HE THREATENED TO DO IF HE CAUGHT HER CHEATING. ........................................................................ 56 A. Mr. Fennell Threatened To Kill Ms. Stites If He Discovered She Was Cheating On Him. ............................................................................. 56 B. Powerful New Evidence Suggests That Mr. Fennell Discovered Ms. Stites's Relationship With Mr. Reed And Followed Through On His Threats. ......................................................................................... 57 VII. OTHER EVIDENCE IMPLICATING MR. FENNELL. ............................... 59 A. Mr. Fennell's Inconsistent Statements. ..................................................... 60 B. Evidence Mr. Fennell Was Abusive Towards Ms. Stites. ........................ 62 C. Fennell's Pattern of Violence And Abuse As A Police Officer ............... 66 1. The October 26, 2007 Rape. ..................................................... 66 2. March 12, 2007 Rape of B.A. ................................................... 68 3. Sexual Misconduct Reported by Travis County Sheriff's Office......................................................................................... 69 4. August 11, 2007 Misconduct Regarding Kelly Ramos. ........... 69 5. Threat to Sexually Assault Mary Ann Bone. ............................ 70 6. Jamie Bolin Report. .................................................................. 71 VIII. EVIDENCE OF MR. REED'S ALLEGED PRIOR BAD ACTS .................. 72 REASONS FOR GRANTING THE WRIT ............................................................. 73 I. APPLICABLE LEGAL STANDARDS ........................................................... 73 A. Article 11.071 § 5(a)(1)—Newly Discovered Evidence. ......................... 73 B. Article 11.071 § 5(a)(2)—Gateway Actual Innocence/Schlup. ............... 74 iii C. Actual Innocence under Elizondo. ............................................................ 75 II. THE NEWLY-DISCOVERED EVIDENCE. .................................................. 76 III. MATERIAL NEWLY DISCOVERED EXCULPATORY EVIDENCE WAS SUPPRESSED IN VIOLATION OF BRADY V. MARYLAND. ........... 77 IV. THE STATE PRESENTED FALSE TESTIMONY OF MR. FENNELL IN VIOLATION OF DUE PROCESS............................................................ 83 V. DEFENSE COUNSEL’S INEFFECTIVE ASSISTANCE DEPRIVED MR. REED OF DUE PROCESS UNDER STRICKLAND V. WASHINGTON .................................................................. 87 A. Defense Counsel Failed To Investigate Time Of Death .......................... 88 B. Counsel Failed To Investigate The Scientific Basis For The State’s Expert Testimony Regarding The Time Of Survival Of Intact Spermatozoa ............................................................................. 89 C. Counsel Failed To Investigate Relationship Witnesses ........................... 90 VI. MR. REED'S ACTUAL INNOCENCE SHOWING SATISFIES BOTH ELIZONDO AND ARTICLE 11.071, SECTION 5(A)(2). ............................ 91 CONCLUSION AND PRAYER ........................................................................... 934 iv INTRODUCTION Rodney Reed files this successor Application for Writ of Habeas Corpus (the "Application") asking the Court to vacate his conviction and death sentence because there is even more new evidence, discovered since this Court’s June 26, 2019 order denying his prior habeas applications, that proves that Mr. Reed did not murder Stacey Stites. Several more witnesses have come forward with powerful new credible information that exonerates Mr. Reed and inculpates another person, Ms. Stites’ fiancé, Jimmy Fennell, Jr., in her murder.1 Of particular note is a former prisoner and Aryan Brotherhood gang member named Arthur J. Snow, Jr., who states in a sworn affidavit dated October 29, 2019 that Fennell confided in Snow that Fennell’s fiancé was cheating on him with a black man and confessed that: "I had to kill my nigger-loving fiancé[.]" (Exhibit 1) More witnesses, each of whom knew Ms. Stites and Mr. Fennell (but not Mr. Reed), have also come forward just in the past three months with evidence that 1 Several other new witnesses have also come forward implicating Mr. Fennell in Ms. Stites's death and are being actively investigated by Mr. Reed's defense. On October 4, 2019, Mr. Reed filed with the District
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