DNA Testing Could Save This Texas Man’s Life. But Prosecutors Are Opposing It.

Rodney Reed, set to be executed on Nov. 20, is innocent of a rape and murder, his lawyers say, and untested evidence will prove it. But prosecutors have pushed back, arguing the evidence is contaminated.

For the last two decades, Rodney Reed has said he can prove he is innocent of the crimes that landed him on Texas’s death row. The key to his freedom, he has argued, lies in a box in the Bastrop County clerk’s office. The box contains items—including a belt, name tag, shirt, and two beer cans—found in 1996 near the dead body of 19-year-old Stacey Stites. On these items, Reed has maintained, is biological material from Stites’s killer, and testing will show that material does not belong to him.

Prosecutors, however, have said that Reed, who in 1998 was convicted of raping and murdering Stites, could not be innocent. They have opposed testing the evidence, which includes the murder weapon, as the case has wound its way through state and federal courts.

In August, Reed’s attorneys filed a federal civil rights lawsuit, arguing that executing him without first conducting DNA testing is a violation of his constitutional rights. And on Tuesday, they asked the U.S. Supreme Court to consider his innocence claims. In that filing, Reed’s attorneys asked whether convicting or executing a person who is innocent violates the U.S. constitution. Reed is scheduled to die by lethal injection on Nov. 20.

As DNA testing has become more advanced, so has its ability to provide crucial information that can reconstruct who was present at a crime scene. Test results, as part of a larger case, can carry enormous weight: They can help prove that someone is innocent and in some cases, identify the person who committed the crime. Or they can do the opposite and confirm a person’s guilt. In death penalty cases, testing has saved lives. Of the 166 people exonerated from death row since 1973, 21 of those were freed using DNA testing.

Still, some prosecutors continue to oppose this testing to re-examine convictions in capital cases. Vanessa Potkin, director of post-conviction litigation at the Innocence Project, told The Appeal that during her time there, at least six people have been executed, despite the availability of DNA testing that could prove their innocence. Prosecutors fought against the testing in all of those cases.

“We have a human system we know it doesn’t always get it right,” she said. “It’s pretty shocking when you get to a capital case, where the stakes couldn’t be higher, to encounter prosecutorial resistance to simple tests that could get to the truth.”

There were no eyewitnesses to support the state’s theory that Reed abducted Stites on her way to work; raped and murdered her; and abandoned her body. Instead, the state’s case hinged on three sperm cells found inside Stites. Prosecutors argued at trial that the cells, which a 1996 DNA test confirmed were Reed’s, proved that he had raped Stites just before killing her.

Reed’s attorneys have not disputed that the sperm belongs to their client. Since 1998, they, and Reed, have said that he and Stites were involved in a consensual sexual relationship and had sex sometime after midnight on the day before she was found dead. Forensic experts have supported this theory in recent filings.

“It is further my opinion beyond a reasonable degree of medical certainty that, based on all of the forensic evidence, Mr. Reed is scheduled to be executed for a crime that he did not commit,” wrote forensic pathologist Michael Baden in 2015. The forensic testimony that the prosecution used to establish their timeline for the killing has since been disproved or recanted.

In 2015, Bastrop County District Attorney Bryan Goertz consented to testing Stites’s clothing and swabs taken from her body. The test found that Reed was a potential match for the biological material found on them. But his attorneys argue that Stites had been redressed in her work clothes from the previous night, when she had sex with Reed, before she was killed.

“In a lot of ways it was a way for them to claim they agreed to some DNA testing without actually risking a DNA result that could actually identify who committed the crime,” Reed’s attorney, Bryce Benjet of the Innocence Project, told The Appeal.

Reed’s legal team argues that a belt and other items found near Stites’s body will most likely contain DNA from her fiancé, Jimmy Fennell, a former police officer who was released from prison in 2018 after being convicted of kidnapping and improper sexual contact with a woman in his custody. Fennell made several statements during and after the investigation that were inconsistent with his story that he and Stites showered together then went to bed the night before her body was found, Reed’s attorneys have argued. And according to an autopsy report, a woven leather belt—half of which was found by Fennell’s truck and half of which was found near Stites’s body—was used to strangle Stites. In their federal civil rights complaint, Reed’s attorneys allege that Fennell said on “multiple occasions” that he would kill her if she ever cheated on him, at least one time specifying that it would be with a belt.

Fennell’s attorney has said his client was not involved in Stites’s death. “[Jimmy] continues to profess his innocence,”attorney Robert M. Phillips told Austin news outlet KXAN in March 2018. “He loved Stacey Stites. He was engaged to be married to her and the individual who raped and murdered her is properly on death row.”

Goertz did not respond to requests for comment from The Appeal, but in a May 2018 filing with the U.S Supreme Court, he characterized Reed’s challenges to his conviction as a “fervent attack” without any basis. He has argued that the items cannot be tested because they are contaminated and have not been stored properly. Even if they had been, they would not prove that Reed is innocent, Goertz has written in court filings. He has also said that Reed only requested testing after he had run out of other options. The judges for Texas’s highest criminal court have ruled in line with this argument.

Reed’s attorneys have countered that all of the items meet the criteria for DNA testing and any doubts about contamination would be cleared up by obtaining matches on several items that belong to Fennell.

“It’s really extraordinary that we have evidence that clearly could prove innocence, that would undoubtedly be tested if this was a murder investigated today,” Benjet said. Yet “the district attorney and the attorney general’s office have steadfastly refused to even make it possible to answer these basic questions as to guilt or innocence,” he added.

The U.S. Supreme Court has ruled that there is no constitutional right to DNA testing. Each state has different rules about what qualifies for DNA testing, which means people on death row must either rely on the state courts to rule in their favor or for prosecutors to give their consent.

In Ohio, Portage County’s chief prosecutor, Victor Vigluicci, is opposing DNA testing in the case of Tyrone Noling, a death row prisoner convicted of murdering an elderly couple in 1990. For more than two decades, Noling has maintained his innocence. Much like Reed’s case, there is no physical evidence linking him to the crime, and all three people who testified against him at trial have since recanted their stories. Noling’s attorneys have pushed for the state to test evidence, but the state has argued that the items are contaminated.

In an email, Vigluicci told The Appeal that testing the items would lead to “false results.” When asked about the possibility that Noling could be innocent, he cited the “overwhelming evidence” that was used to convict him. “We seek only the truth and to do justice, which is what we have done in this case,” he wrote.

Noling’s attorney, Brian Howe of the Ohio Innocence Project, told The Appeal that although innocence and guilt are not always clear in some cases, “I just really don’t understand how the government would fight and expend all of these resources just to preserve its ignorance.”

A 2011 study found that prosecutors opposed DNA testing in nearly 1 in 5 cases that resulted in an exoneration. Former Baltimore County prosecutor Ann Brobst first said the evidence in Kirk Bloodsworth’s case had been destroyed when he wrote to her requesting DNA testing in 1992. Bloodsworth’s attorney eventually located the evidence in the clerk’s office, and a test did not match Bloodworth’s DNA profile. He was released from prison in 1993, after nearly a decade behind bars—the first person sentenced to death to be exonerated with DNA testing.

Bobst did not accept that Bloodsworth was innocent until 2004, when investigators matched the DNA to the victim’s killer. “She refused to even think about my innocence at all,” Bloodsworth told The Appeal of Brobst, who died in 2012. “At the end of the day, 24 jurors, the police department, and the prosecutor’s office of Baltimore County were all dead wrong.”

DNA testing is available in less than 10 percent of cases involving a violent crime, which means most people can’t use it as a tool to help prove they have been wrongfully convicted, said Potkin of the Innocence Project. And even if it is available, prosecutors and courts might argue that the prisoners didn’t ask for the testing in time. “It should never be too late for innocence,” said Potkin.

This was the case for Darrell Grayson, who was executed in Alabama in 2007 for the 1980 rape and murder of an elderly woman, despite requests from his attorneys, including Potkin, to test clothes and sheets from the crime scene that they said would show he was not present. Then-Attorney General Troy King said that because Grayson had confessed to the crime and never asserted his innocence, he did not have a right to the testing. (Grayson, until his death, maintained that he didn’t remember the evening because he was intoxicated.) King also accused Grayson of using his DNA testing petition as a delay tactic to avoid execution.

King did not respond to a list of questions from The Appeal.

In some cases, however, prosecutors have agreed to work alongside the defense. In Louisiana, Jefferson Parish District Attorney Paul Connick Jr. launched a joint investigation with the Innocence Project into Damon Thibodeaux’s capital murder conviction after being presented with evidence that he had likely given a false confession.

“As district attorney, it is my duty to make every effort to ensure that convictions are based on reliable evidence,” Connick said at the time. DNA testing and interview witnesses confirmed that Connick’s office had almost sent an innocent man to the execution chamber. After 15 years on death row, Thibodeaux was exonerated in 2012.

Texas judges have already ruled that Reed will not be able to test the belt and other items. That leaves the final say on his case to federal courts or Governor Greg Abbott. Though federal courts have stepped in to require DNA testing in capital cases in the past, this rarely happens, said Potkin.

If the testing is conducted and analysts conclude that the DNA on the belt does not belong to Reed, he could use the results to request a new trial or ask Abbott for a commutation, as required by Texas law. Abbott could also decide to commute Reed’s sentence without a DNA test but this is unlikely. He has overseen 47 executions since taking office.

A 2014 analysis of past exonerations concluded that about 4 percent of people, or roughly 110 prisoners on death row are innocent. And Texas has executed innocent men before. The state executed Carlos DeLuna in 1989, though a subsequent investigation by Columbia University found that a key witness had misidentified him. In 2004, the state executed Cameron Todd Willingham, based on junk arson science. In August, Texas executed Larry Swearingen, who maintained his innocence until his final breath. The court said it stood by the “mountain of evidence” against him.

Keith Findley, an expert on wrongful convictions with the Wisconsin Innocence Project, told The Appeal that “ultimately we need prosecutors to take their commitment, their responsibility, to doing justice more seriously,” he said. “You let the DNA testing do the talking.”