AUSTIN, Texas -- Another disappointing day in court for Rodney Reed and some people wonder at this point how many more chances he has left.

The state Court of Criminal Appeals Wednesday rejected Reed's request for DNA testing. Reed sits on death row, convicted of killing Stacey Stites in Bastrop County in 1996.

Reed has long maintained his innocence with defense lawyers saying Stites' fiancé, then police officer Jimmy Fennell, likely killed her. Fennell is currently serving time in prison for kidnapping and sexually assaulting a woman who was in his custody.

Reed said he and Stites were having an affair. Prosecutors say Reed raped and strangled Stites. Reed had hoped to test the DNA on more than 40 items collected in the murder investigation. But the court found that Reed did not prove these DNA results would have changed the results of his original trial and they rejected his appeal in a unanimous decision.

Reed was nearly executed two years ago before the appeals court stepped in to look at this old evidence.


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The Texas Court of Criminal Appeals denied DNA testing in this death penalty case in a deeply flawed decision that flouts the clear intent of the Legislature that comprehensive testing be performed before the government sends a man to his death.  As we have seen both in cold case prosecutions and DNA exonerations such as the Michael Morton case, DNA testing is most effective when it identifies a third party as the perpetrator of a crime.  The Texas legislature requires the results of DNA testing to be compared to DNA databases for this very purpose.  But in this recent opinion, the Court of Criminal Appeals continues to ignore the law on the books and limits access to DNA testing based on an outmoded and artificially narrow conception of how DNA is used day in and day out to solve crimes.  

In Mr. Reed's case, the victim's fiance Jimmy Fennell was suspected of the crime by law enforcement and additional evidence has come out over the years suggesting his involvement in the crime.  Despite the compelling evidence of Mr. Reed's innocence filed alongside this appeal, the Court has instead based its denial of DNA testing on evidence at trial that has been disavowed by the State's own witness.  This head in the sand approach flouts the legislative intent to ensure that DNA testing is used in all cases where it can prove innocence.  

Two experts testified without contradiction that DNA testing could identify a specific individual, such as Mr. Fennell, as the source of DNA on the evidence.  This, in turn, could establish that individual’s responsibility for the crime.  However, the Texas Court of Criminal Appeals, refused to even consider the possibility that DNA testing would actually identify an individual—limiting its consideration to exclusionary results.  Where roughly 50% of DNA exonerations involve the identification of a guilty, third party, this holding turns the Texas DNA statute into a dead letter.

The Court denied testing of the majority of the evidence citing unsupported concerns over chain of custody.  Chain of custody is an important concept in criminal cases to ensure the integrity of the evidence used in a prosecution.  However, chain of custody traditionally involves only documentation of who possessed the evidence and ensuring that nothing was tampered with, substituted, or materially altered.  The witnesses confirmed in Mr. Reed's case that all of the evidence has been kept under lock and key with its chain of custody well documented.  Although the Court took issue with the manner in which some of the evidence was stored and handled in the routine course of the trial, DNA experts testified without contradiction that questions of contamination from improper storage are common in cold cases, and that the results of DNA testing can and have proven innocence even under these circumstances.  If the Court's expanded and faulty notion of chain of custody were carried forward, it will create huge problems for the State in prosecuting future cases.

The Court's finding of delay is also puzzling.  This was not a new request or some sort of last minute hail mary pass.  Mr. Reed first sought DNA testing early in his post conviction proceedings, but was turned down by the Court prior to the enactment of the DNA statute.  We renewed this request over three years ago—long before an execution date was ever contemplated in the case.  We even offered to pay for it.  After the State delayed resolution of our request for months and the appellate court deliberated on the matter for over two years, a finding that Mr. Reed caused delay is simply inconsistent with the record.  

There have been well over 300 DNA exonerations in this country, and Texas has lead the nation in recognizing and addressing many of the problems relating to wrongful conviction.  This opinion is a step in the wrong direction and, if followed, will undoubtedly leave innocent men and women languishing in prison without the tools necessary to prove their innocence.  As we saw in the Michael Morton case, this is also a public safety issue.  When the wrong person is convicted, guilty parties are left free to victimize our communities.  In light of the substantial evidence already implicating another man as the guilty party, it simply makes no sense to execute Mr. Reed without the same sort of DNA testing that would be required in any murder case brought today. 

We are still reviewing this lengthy opinion and evaluating our options.  However, we anticipate following the well established avenues for review of requests for DNA testing in federal court.