                                                                                WR-50,961-07
                                                                 COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
                                                               Transmitted 4/7/2015 10:49:18 PM
                                                                   Accepted 4/8/2015 8:47:42 AM
                                                                                   ABEL ACOSTA
                           IN THE                                                          CLERK
             COURT OF CRIMINAL APPEALS OF TEXAS
                            AND                    RECEIVED
                     ST                     COURT OF CRIMINAL APPEALS
               THE 21 JUDICIAL DISTRICT COURT      4/8/2015
                   BASTROP COUNTY, TEXAS      ABEL ACOSTA, CLERK


EX PARTE                              §             Writ Cause No. 50, 961.07
                                      §
RODNEY REED,                          §
                                      §             Trial Cause No. 8701
Applicant.

    _________________________________________________________

RESPONSE TO STATE’S MOTION TO DISMISS APPLICATION FOR
           WRIT OF HABEAS CORPUS AS ABUSIVE
  _________________________________________________________

                 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
Table of Contents ............................................................................................ i
I.    Introduction .......................................................................................... 1
II.   The State’s Erroneous Procedural Arguments ..................................... 2
      A.    Mr. Reed’s Elizondo Claim Can be Considered under
            Article 11.071§5(a)(2) ............................................................... 2
      B.    The Factual Unavailability Requirement of Article
            11.071§5(a)(1) Does Not Apply to the Separate
            Innocence Gateway Provision of Section 5(a)(2) ...................... 3
      C.    Mr. Reed’s Claim under Article 11.073 is Properly
            Reviewed under Section 5 of Article 11.071 ............................. 5
      D.    Mr. Reed’s False Testimony Claim is Properly
            Reviewed under Section 5 of Article 11.071 ............................. 6
III. Response to State’s Argument on Merits of Claims ............................ 8
      A.    Dr. Bayardo’s Declaration is a Change in his
            Scientific Opinion ...................................................................... 8
      B.    The Law of the Case Does Not Control this Court’s
            Consideration of the False Testimony Claim........................... 14
      C.    The State’s Response to the Merits of the False Testimony
            Claim is Contradicted by the Record ....................................... 16
      D.    The State’s Defense of its Unreliable Expert Testimony
            Predicting Future Dangerousness Does Not
            Comport with the Law or the Facts.......................................... 25
      E.    The Totality of the Evidence Proves Innocence ...................... 27
IV. Conclusion.......................................................................................... 36



	       	  




                                                                 i
                                                          	  
     RESPONSE TO STATE’S MOTION TO DISMISS APPLICATION FOR
               WRIT OF HABEAS CORPUS AS ABUSIVE


I.     Introduction

       Absent from the State’s Motion to Dismiss is any evidence contradicting the

compelling scientific proof and factual accounts which establish Mr. Reed’s

innocence. Instead, the State has resorted to misrepresentation of the factual

record and a cynical distortion of this Court’s law. The State’s Response appears to

be aimed solely at preventing any meaningful inquiry into the growing body of

evidence that the State convicted the wrong man for the murder of Stacey Stites.


       In the past few years, the Legislature and this Court have created new

avenues directed towards cases like Mr. Reed’s—convictions based on faulty or

misleading forensic science. See Tex. Code Crim. Proc. Art. 11.073; Ex parte

Chavez, 371 S.W.3d 200 (Tex. Crim. App. 2012). Because Mr. Reed’s application

for writ of habeas corpus (1) raises compelling proof establishing innocence and

other constitutional violations and (2) falls plainly within the statutory criteria for

successive habeas applications, this Court should remand the case for a hearing at

which Mr. Reed may prove his claims and obtain the relief requested in his

application.




                                                 1
                                          	  
II.   The State’s Erroneous Procedural Arguments

      The State’s Motion to Dismiss is focused primarily on procedural defenses

to Mr. Reed’s claims and rests on an inaccurate construction of the law and the

record in this case. Contrary to the State’s assertions, all of the claims raised in

Mr. Reed’s Application for Writ of Habeas Corpus are properly before the Court

and supported by a compelling factual record.


      A.     Mr. Reed’s Elizondo Claim Can Be Considered Under Article
             11.071§5(a)(2).

      The State bases its procedural challenge to Mr. Reed’s substantive innocence

claim on a faulty construction of this Court’s opinion in Elizondo and the

innocence procedural gateway set forth in section 5(a)(2) of Article 11.071 of the

Texas Code of Criminal Procedure. Article 11.071§5(a)(2) excuses the procedural

default of a claim where an applicant shows “by a preponderance of the evidence,

but for a violation of the United States Constitution no rational juror could have

found the applicant guilty beyond a reasonable doubt.” In a footnote, the State

argues that Mr. Reed’s actual innocence claim cannot be considered under section

5(a)(2) because an Elizondo claim does not raise “a claim of constitutional error at

trial.” Motion to Dismiss at 19 n.13. However, the plain language of section

5(a)(2) does not limit the provision to trial error, and section 5(a)(2)’s “no rational

juror” standard actually mirrors the standard set forth in Elizondo that Due Process

is violated where there is clear and convincing evidence that no rational juror
                                           2
would convict. See Ex parte Elizondo, 947 S.W.2d 202, 210 (Tex. Crim. App.

1996). Where an innocence claim under Elizondo entails the same element of

proof required by section 5(a)(2), the State’s attempt to limit section 5(a)(2) to

non-innocence trial error falls flat. Indeed, this Court has granted habeas relief

under Elizondo repeatedly without requiring a showing of factual or legal

unavailability pursuant to section 5(a)(1). The State’s argument that the innocence

gateway provision of section 5(a)(2) does not apply to innocence claims under

Elizondo is inconsistent with the plain language of the law, this Court’s prior

decisions, as well as common sense, and should be rejected.1


                                                           B.                                                         The Factual Unavailability Requirement of Article 11.071§5(a)(1)
                                                                                                                      Does Not Apply to the Separate Innocence Gateway Provision of
                                                                                                                      Section 5(a)(2).

                                                           The State makes a secondary argument that Mr. Reed has not made a prima

facie showing of innocence under section 5(a)(2) because he has not shown that the

new evidence of innocence “could not have been known [to an applicant] even

with the exercise of due diligence.” Motion to Dismiss at 25 (quoting dicta in Ex

parte Brown, 205 S.W.3d at 545). As the State acknowledges, this argument

would invite the Court to graft a showing of “factual unavailability” under the

separate provision for review of procedurally defaulted claims set forth in section
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
  The State’s contention that Mr. Reed failed to brief how his Elizondo claim fits within section
5(a)(2) of article 11.071 ignores the fact that clear and convincing proof of innocence under
Elizondo would by definition meet the preponderance standard set forth in section 5(a)(2).
2
  This Court’s opinion in Ex parte Brown contains some language suggesting a diligence
                                                                                                                                                                                                                                                    3
5(a)(1) for evidence of innocence to be considered under the innocence gateway

provision of section 5(a)(2). See State’s Motion to Dismiss at 25 (unavailability

discussion dovetails with newly-available requirement of freestanding innocence

claim). This construction of the law conflicts with the legislative intent of section

5(a)(2) as well as traditional principles of statutory construction.


                                                           This Court explained in its consideration of Mr. Reed’s prior habeas

proceeding that the adoption of an innocence gateway for review under section

5(a)(2) was intended as a codification of the Schlup innocence standard:


                                                           Because Article 11.071, Section 5(a)(2) was enacted in response to the
                                                           Supreme Court's decision in Schlup,28 we conclude that standards set forth
                                                           for evaluating a gateway-actual-innocence claim announced by the Supreme
                                                           Court should guide our consideration of such claims under Section 5(a)(2).
                                                           Therefore, to mount a credible claim of innocence, an applicant “must
                                                           support his allegations of constitutional error with reliable evidence—
                                                           whether it be exculpatory scientific evidence, trustworthy eyewitness
                                                           accounts, or critical physical evidence—that was not presented at trial.”

Ex parte Reed, 271 S.W.3d 698, 733 (Tex. Crim. App. 2008). The only

requirement for consideration of factual evidence under Schlup is that the evidence

“was not presented at trial.” See id.2



	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
2
  This Court’s opinion in Ex parte Brown contains some language suggesting a diligence
requirement. See 205 S.W.3d at 545. However, the Court in Ex parte Brown did not cite any
authority for the proposition, and the facts of the case involved evidence which had already been
presented to the trial court in a motion for new trial. See id. at 547 (rejecting Schlup claim based
on evidence raised and rejected on motion for new trial). The case did not actually involve a
diligence inquiry and the dicta suggesting this inquiry as an element should be disregarded.
                                                                                                                                                                                                                                                    4
      The State’s asserted “newly available” requirement also does not appear in

the plain language of section 5(a)(2). This unwritten requirement was inferred

only because of the legislative intent to codify Schlup. The Court should not now

further construe section 5(a)(2) in a manner that deviates from the Schlup standard

and renders the provision meaningless. Reading the State’s proposed factual

unavailability requirement into section 5(a)(2), would render that subsection

meaningless. Where all claims supported by factually unavailable evidence are

reviewed under section 5(a)(1): there would be no purpose of adding a separate but

identical pathway for claims raising innocence. Accordingly, this Court should

reject the State’s attempt to bar consideration of the substantial evidence of

innocence in determining whether Mr. Reed has met the section 5(a)(2) innocence

gateway standard. See Chevron Corp. v. Redmon, 745 S.W. 2d 314, 316 (Tex.

1987) (Court declines construction that renders statutory terms meaningless).

      C.     Mr. Reed’s Claim under Article 11.073 is Properly Reviewed
             under Section 5 of Article 11.071.

      This Court recently held in Ex parte Robbins, that a claim brought under

article 11.073 meets the “legal unavailability” requirement for review set forth in

section 5(a)(1). --- S.W.3d ---, 2014 WL 6751684 (Tex. Crim. App. November 26,

2014) (reh’g filed). Ex parte Robbins is cited in Mr. Reed’s application and

conclusively demonstrates his right to review.



                                          5
                                                           Likewise, a claim brought under article 11.073 will meet both the “factual

unavailability” requirement of section 5(a)(1) and the innocence gateway provision

in section 5(a)(2) because the merits showing under article 11.073 requires a

showing of the elements of each of these provisions. Specifically, a claim under

11.073 must be based on “new science” that was not ascertainable through the

exercise of reasonable diligence of the convicted person—the same standard

applicable under section 5(a)(1). Compare Tex. Code Crim. Proc. Art.

11.073(b)(1) with id. Art. 11.071§5(a)(1). Furthermore, an applicant bringing a

claim under article 11.073 must show by a preponderance of the evidence that he

would not be convicted. This is essentially the same innocence showing as

required under the Schlup standard set forth in article 11.071§(5)(a)(2).


                                                           D.                                                         Mr. Reed’s False Testimony Claim is Properly Reviewed under
                                                                                                                      Section 5 of Article 11.071.

                                                           After a page and a half of briefing to the contrary, the State acknowledges in

its motion (as it must) that Mr. Reed’s unknowing use of false testimony claim

constitutes a new legal basis for review under article 11.071§5(a)(1). See Motion

to Dismiss at 34 (citing Ex parte Chavez, 371 S.W.3d 200, 207 (Tex. Crim. App.

2012)).3 Because Mr. Reed’s last prior habeas application was filed in this Court

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
3
 The State’s accusation that Reed should have filed his false testimony claim earlier is especially
disingenuous because the State opposed Mr. Reed’s 2012 motion to abate the federal
proceedings so that the claim could be presented to this Court in 2012. See Motion for Leave to
Amend Petition and Abate Proceeding, Reed v. Dretke, No. 02-CV-00142-LY (Dkt. # 188);
                                                                                                                                                                                                                                                    6
on May 5, 2009, before this Court announced its decision that the unknowing use

of false testimony violates Due Process in Ex parte Chabot, 300 S.W.3d 768 (Tex.

Crim. App. December 9, 2009), the legal basis for his claim was unavailable and

his claim may be reviewed under section 5(a)(1).


                                                          Mr. Reed’s claim regarding the recantation of the State’s expert witnesses

Dr. Bayardo and Meghan Clement was likewise factually unavailable. Article

11.071 §5(e) defines factual unavailability for the purposes of section 5(a)(1) as

“not ascertainable through the exercise of reasonable diligence” at the time the

prior state habeas application was filed. In this case, Mr. Reed’s counsel

investigated the forensic evidence in the case and presented evidence contradicting

the State’s theory at trial. However, there was no indication at any time that the

State’s expert witnesses had changed their mind, and absent some evidence known

to the applicant of a recantation, reasonable diligence would not require a periodic

re-interview of the State’s experts to determine if they were now to contradict the

sworn testimony offered at trial or disclaim the obvious inferences drawn from

their sworn trial testimony.




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
Respondent Thaler’s Response in Opposition to Petitioner’s Motion for Post-Judgment
Amendment and Abatement of the Proceeding, Reed v. Dretke, No. 02-CV-00142-LY (Dkt. #
189).
                                                                                                                                                                                                                                                                                                                                                                                         7
III.   Response to State’s Arguments on Merits of Claims

       Mr. Reed refers the Court generally to his Application and the attached

evidence and incorporates that argument and evidence into this Response. This

Response will address only those issues which are new, or require additional

discussion.


       A.     Dr. Bayardo’s Declaration is a Change in his Scientific Opinion

       In response to Mr. Reed’s claim under article 11.073, the State argues that

the new opinions offered in Dr. Bayardo’s declaration do not constitute a change in

his scientific opinion. See Motion to Dismiss at 28-31. This contention is not

supported by the record. Taken point by point, the arguments made by the State

simply do not hold up to a careful reading of the record.


   • Reversal on Time of Death

       The State argues that Dr. Bayardo’s retraction of his estimate of the time of

death at 3:00 a.m. was not a change in his opinion at trial because Dr. Bayardo

admitted at trial that no precise determination of time of death can be made, “we

can only make estimates.” Motion to Dismiss at 29 (quoting 48 RR 113).

However, the State’s citation to the record is misleading. What Dr. Bayardo

actually said to the jury that convicted Mr. Reed was as follows:


       Q. Okay, is time of death and making that determination, is that an exact
       science?

                                          8
                                                           A. No. it’s not a precise scientific way of making a determination of the
                                                           time of death, we can only make estimates.
                                                           Q. With an hour or two hours or something like that?
                                                           A. Or four hours or so.
                                                           ***
                                                           A. Based on the changes that occur after death in the body, I make an
                                                              estimation of the time of death being around 3:00 a.m. on April 23, 1996.
                                                           Q. And you indicated that that’s somewhere within a short period of time
                                                              around that one way of the other?
                                                           A. Give or take one or two hours.

48 RR 113-14. Accordingly, Dr. Bayardo clearly testified that the time of death

was between 1 a.m. and 5 a.m. on April 23, 1996. He could not pinpoint the

precise moment of Ms. Stites’s death, but he provided the jury with a four hour

range.4

                                                           In his declaration, however, Dr. Bayardo retracts his estimate as unreliable:


                                                           If the prosecuting attorneys had advised me that they intended to use
                                                           my time of death estimate as a scientifically reliable opinion of when
                                                           Ms. Stites died, I would have advised them not to do so.
Application at Exhibit 1. Yet that is exactly what happened at Mr. Reed’s trial. In

the State’s closing argument, the prosecutor told the jury:

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
4
  The State makes the same misleading argument in its effort to discount the new time of death
estimates provided by Mr. Reed’s experts Drs. Spitz, Baden, and Riddick. At page 47 of its
Motion to Dismiss, the State contends that this Court should not credit new estimates placing
Ms. Stites’s time of death at before midnight on April 22, 1996 because “dogmatic and pinpoint
accuracy in this matter is clearly not achievable.” Id. However, none of the habeas experts
attempted to pinpoint the precise moment of death. Each gave a range of several hours, each of
which contradicting the State’s theory of Mr. Reed’s guilt.
                                                                                                                                                                                                                                                    9
      Now we know that [Stacey] didn’t get killed at midnight the night
      before or seven o-clock or whenever the night before because Dr.
      Bayardo tells us that, that Stacey died within an hour of three o’clock.
56 RR 74. Viewing the record, and the manner in which Dr. Bayardo’s testimony

was used by the State, Dr. Bayardo’s retraction of any reliability as to his estimated

time of death must be viewed as a change in science relied on by the State. See Ex

parte Robbins, --- S.W.3d ---, 2014 WL 6751684 at *5 (change in science found

where State’s forensic pathologist changed opinion from homicide to

“undetermined”, but still considered death “suspicious”).


   • Reversal on Intact Sperm as Evidence of Sexual Assault by Reed

      Again citing bits of the record out of context, the State argues that Dr.

Bayardo’s new opinion on whether Mr. Reed’s semen is related to the sexual

assault was no different from his opinions offered at trial. For example, the State

claims that Dr. Bayardo’s testimony at trial that the sperm he found were placed “a

day or two” before his 1:50 p.m. autopsy examination on April 24, 1996 served as

a substitute for direct scientific evidence that intact sperm can be found, as a

general rule for up to 72 hours. See Motion to Dismiss at 29. As with its

misleading citation to the testimony on the time of death, the State also fails to

mention follow up testimony by Dr. Bayardo which identifies the presence of

semen as a key element in his opinion that Ms. Stites was anally sexually assaulted

by Mr. Reed contemporaneous with her death:


                                          10
      Q. Okay, your contention that the presence of sperm and the presence
      of semen is a result of non-consensual sexual intercourse?
      A. No, my contention is the dilated anus and the scrapes in the anus
      and the presence of semen, yes.
48 RR 145; see also 48 RR 126-127 (anal sexual assault at time of death).

Contrary to the argument presented in the Motion to Dismiss, that Dr. Bayardo’s

testimony somehow contradicted the State’s case, the State clearly understood Dr.

Bayardo’s opinion as refuting any possibility of a consensual encounter between

Mr. Reed and Ms. Stites by arguing at closing:


      Dr. Bayardo’s testimony was hard, and I know it was, and it was hard
      because I saw it on your faces, on many of your faces, the realization
      of it. The realization and sort of visualization of really what we are
      talking about in this case I think finally hit and the realization of a 19-
      year-old girl being sodomized while the life was being taken out of
      her while this belt was around her neck.
56 RR 39-40.


      Comparing Dr. Bayardo’s trial testimony to his declaration, the State again

selectively quotes the declaration in a misleading fashion that overlooks the force

of his recantation. Motion to Dismiss at 29 (quoting Bayardo that sperm “could”

have been deposited days earlier). This quotation fails to inform the Court of Dr.

Bayardo’s next sentence making a case-specific conclusion that directly contradicts

his trial testimony:


      Further the fact that I found “very few” (as stated in the autopsy
      report) spermatozoa in Ms. Stites’s vaginal cavity suggests that the

                                          11
      spermatozoa was not deposited less than 24 hours before Ms. Stites’s
      death.
Application at Exhibit 1 ¶ 4. Translating the double negative, Dr. Bayardo’s

current opinion is that intercourse between Reed and Stites was more than 24 hours

before her death. This corroborates Mr. Reed’s account of a consensual

relationship in which they last had sex between midnight and 3 a.m. on April 22,

1996 and directly contradicts Dr. Bayardo’s conclusion at trial that the sperm was

placed 1-2 days before his examination after 1:50 p.m. on April 24, 1996—1:50

p.m. on April 22, at the earliest. Dr. Bayardo’s trial estimate was less than 24

hours before death (not more) and ruled out consensual sex because Ms. Stites was

accounted for from the time she arrived home from work at 1:30 p.m. on April 22,

1996. See Application at Exhibit 8 (statement of Carol Stites describing Stacey’s

whereabouts on the afternoon and evening of April 22, 1996).


   • Reversal on Anal Injury as Evidence of Sexual Assault by Reed

      The State also relies on an incomplete and misleading reading of Dr.

Bayardo’s declaration in its argument that Dr. Bayardo has not changed his opinion

that the anal injury he believes was present implicated Mr. Reed in the murder. It

cites Dr. Bayardo’s above-quoted trial testimony that his finding traces of Mr.

Reed’s semen in the rectal samples and the injury to the anus was evidence that

Mr. Reed sexually assaulted Ms. Stites contemporaneous with her murder. See

Motion to Dismiss at 31. The State then argues that because Dr. Bayardo
                                         12
reaffirmed his belief that “Stites was sexually assaulted in her anal cavity,” there is

“not an about-face of his trial testimony.” Id.


      The State’s contention only sounds reasonable if the Court does not actually

read Dr. Bayardo’s declaration or even the remainder of the sentence quoted by the

State. Although Dr. Bayardo still holds to his flawed opinion that abrasions and

dilation seen at autopsy show anal penetration, he also retracts his trial testimony

in which he claimed to find possible sperm heads on the rectal samples.

Application Exhibit 1 ¶5 (“My trial testimony should not have been construed as

suggesting that spermatozoa were indeed found in Ms. Stites’s rectal cavity.”)

This statement is the opposite of what the State argued to the jury in closing:


      [Dr. Bayardo] also, if you will recall, looked at the swabs from the
      rectal swabs and remember what he said. He said he saw a small
      amount of what appeared to him to be broken up heads and tails of
      spermatozoa.
56 RR 35. The State’s incomplete quotation of Dr. Bayardo’s declaration

regarding the evidence of anal sexual assault strains any semblance of candor. Far

from supporting his trial testimony linking Mr. Reed’s semen to his believed

assault, Dr. Bayardo states:


      In my opinion, Ms. Stites was sexually assaulted in her anal cavity,
      and that assault did not result in the deposit of semen.
Application Exhibit 1¶ 6. Dr. Bayardo then reiterated that the anal injury he

perceived was not related to the presence of Mr. Reed’s semen:
                                          13
       The injuries to Ms. Stites’s anus are certainly consistent with penile
       penetration, as I testified, but if there was penile penetration, there
       was no ejaculation. I understand that the sexual assault for which Mr.
       Fennell was convicted did not involve ejaculation. This is consistent
       with the sexual assault on Ms. Stites. Further, the injuries to Ms.
       Stites’s anus are more consistent with penetration by a rod-like
       instrument, such as a police baton.
Id.   There is simply nothing consistent between Dr. Bayardo’s trial testimony and

his current opinions, and the State’s misleading quotation of Dr. Bayardo’s

declaration and its refusal to acknowledge this obvious fact is devastating to the

credibility of its Motion to Dismiss.


       B.      The Law of the Case Does Not Control this Court’s Consideration
               of the False Testimony Claim

       Without providing any explanation why, the State argues that the merits of

Mr. Reed’s false testimony claim under Ex parte Chabot should be denied under

the “law of the case” doctrine. The law of the case is a court-made, prudential

doctrine in which a court has the discretion not to reconsider a determination of

law that was made on a prior appeal to a court of last resort. See Ex parte

Granger, 850 S.W.2d 513, 516 (Tex. Crim. App. 1993). The Texas Supreme Court

has noted that the law of the case doctrine has a limited application in subsequent

proceedings:


       The doctrine of the law of the case only applies to questions of law
       and does not apply to questions of fact. . . . Further, the doctrine does
       not necessarily apply when either the issues or the facts presented at
       successive appeals are not substantially the same as those involved on
                                          14
      the first trial. . . . Thus, when in the second trial or proceeding, one or
      both of the parties amend their pleadings, it may be that the issues or
      facts have sufficiently changed so that the law of the case no longer
      applies.

Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (citations omitted).

Further, the law of the case has no application where there has been a change in the

controlling law. City of Dallas v. Jones, 331 S.W.3d 781, 785 (Tex. App.—Dallas

2010, pet. dism'd); Council of Alt. Political Parties v. Hooks, 179 F.3d 64, 69 (3d

Cir. 1999) (statutory amendment rendered law of the case doctrine inapplicable).

In this case, the false testimony claim is based in large part on new evidence in the

form of admissions by Dr. Bayardo and Meghan Clement that the testimony

offered at trial was misleading as well as the new affidavits of Drs. Spitz, Baden,

and Riddick. The facts are not “substantially the same” and therefore must be

considered by the Court anew.


      The claim is also premised on a very different legal basis that was not even

recognized at the time this Court decided Mr. Reed’s prior habeas application. See

Ex parte Chavez, 371 S.W.3d at 207. In an obvious misstatement of the law, the

State asserts in a footnote that the legal standard for harm in a Schlup innocence

gateway argument is the same as in a due process false testimony claim:


      . . . the standard for such a claim is “more likely than not” test, see Ex
      parte Chabot, 200 S.W.3d at 772, which is the same more likely than


                                           15
      not standard utilized in the Schlup-type claim already rejected by this
      Court. . .
Motion to Dismiss at 39 n.17. While both standards measure the evidence required

to meet a harm element by a preponderance, the actual standard for harm is

considerably less under this Court’s false testimony jurisprudence. Where the

State’s witnesses testify falsely at trial—even inadvertently—the conviction must

be reversed where it is shown by a preponderance that “could have affected the

judgment of the jury.” Ex parte Robbins, 360 S.W.3d at 459; Ex parte Weinstein,

421 S.W.3d 656, 665 (Tex. Crim. App. 2014) (false testimony violates due process

where “reasonably likely to influence the judgment of the jury”). The false

testimony standard does not implicate innocence at all. By contrast, an applicant

under the Schlup (article 11.071§5(a)(2)) standard must show that no reasonable

juror would have convicted based on the new evidence. See House v. Bell, 547

U.S. 518, 538 (2006) (“any reasonable juror would have reasonable doubt”).

These are very different legal standards. Because both the factual record and the

applicable law are not “substantially the same,” the law of the case does not control

this Court’s consideration of Mr. Reed’s false testimony claim.


      C.     The State’s Response to the Merits of the False Testimony Claim
             is Contradicted by the Record

      The State’s response to the merits of the false testimony claim focuses on

bits of testimony in the record which the State contends rendered the opinions

                                         16
provided by its experts technically accurate. However, this Court has previously

rejected the State’s approach, explaining that even technically correct testimony

still violates Due Process where the witness’ testimony gives the trier of fact a

false impression.” Ex parte Ghahremani, 332 S.W.3d 470, 477 n. 14 (Tex. Crim.

App. 2011). Moreover, the Court has held that the presentation of unreliable

expert opinion falls into the category of false testimony which violates due process.

See, e.g., Ex parte Graf, Ap-11,003, 2013 WL 1232197 (Tex. Crim. App. March

27, 2013) (unreliable arson evidence); Ex parte Henderson, 384 S.W.3d 833, 835,

849-50 (Tex. Crim. App. 2012) (concurring opinions of Price and Cochran, JJ.).


      The State first contends that the jury was not mislead when its expert

witnesses claimed that the semen found in Ms. Stites’s body was left during a

sexual assault contemporaneous with her murder. This unreliable theory was

based in large part on Karen Blakley’s testimony that the “outside” length of time

intact sperm can remain in a body is 26 hours. Motion to Dismiss at 38. Although

the State cannot credibly refute the known scientific literature showing that intact

sperm can be found up to 72 hours after intercourse, it points to two “concessions”

by Blakely that (1) “components of semen” could be found up to 120 hours after

intercourse and (2) studies have shown that sperm was found in a body after 16

days. Id. Just as the State mislead the jury in 1998, it now seeks to mislead this



                                          17
Court regarding the testimony offered by its witnesses on the survival of intact

sperm and its relevance to the forensic investigation.


      The testimony which the State construes as a “concession” by Blakely that

components of sperm can be found up to 120 hours after intercourse, actually

reinforces her testimony that intact sperm do not survive more than 26 hours:


      Q. And in that study, did they also say that internal vaginal swabs, you can
      find semen up to 120 hours later?
      A. That is semen, and all components of semen.
      Q. And by your testimony you’re saying that intact semen up to 26 hours, is
      that the figure you gave?
      A. That’s intact sperm, up to 26 hours.
45 RR 17. Blakley’s testimony can only be viewed as a concession if the Court

ignores both the content of what Blakely said and her answer to the question that

immediately followed. Although Blakely testified that components of semen

(presumably trace chemicals or sperm heads) can be found up to 120 hours after

intercourse, she held firm that intact sperm cannot.


      The State’s characterization of Blakely’s testimony concerning sperm found

in a body 16 days after death is no more accurate when the actual testimony is

examined:


      A. In a living woman, I would expect to find intact sperm, that means
      sperm with their tails on still, no longer than 24 to 26 hours. That’s in
      a living person.
                                         18
                                                           Q. Okay. Now in order to fill things out completely, you did some
                                                           research, and there is one case where sperm was found in a body after
                                                           16 days, right?
                                                           A. That’s correct.
                                                           Q. Explain to the jury the circumstances in that particular case?
                                                           A. This was a woman who was murdered in the mountains of Utah, in
                                                           very high elevation, very dry air, very cold air. I think the
                                                           temperatures were no higher than 50 and often were in the 20s at night,
                                                           so the body was pretty much chilled as if the body were in a
                                                           refrigerator the entire time up to the 16th day they were able to find
                                                           sperm. So the body was kept cool the entire time from the time the
                                                           victim died to the time that she was found.
                                                           Q. Other than that one anomaly, has the research indicated anything
                                                           contrary to what you’ve testified to, to your knowledge?
                                                           A. No, that’s the only case I know of.
55 RR 36-37. As with the statement mentioning 120 hours, Blakely’s discussion

of the 16-day example also does not differentiate between components of sperm

and the relevant issue of finding intact sperm. And just like the statement

mentioning 120 hours, Blakely immediately reiterated her unwavering scientific

opinion that 24-26 hours is the maximum time intact sperm can be found.5


                                                           Meghan Clement’s testimony falls more within the technically correct but

misleading category of false testimony. See Ex parte Ghahremani, 332 S.W.3d at

477 n.14. And again, the State significantly downplays the record in its selective

quotation of the witness. At trial, Clement offered expert testimony designed to

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
5
 When Blakley was interviewed by Mr. Reed’s counsel Andrew MacRae, she declined to
comment on her testimony. Blakley will presumably be subject to subpoena at a hearing.
                                                                                                                                                                                                                                                    19
inform the jury that the intact condition of sperm was an indicator as to the post-

coital interval and corroborated Blakely’s opinion that intact sperm cannot survive

within the body for over 24-26 hours:


      Q. What is the significance of whether spermatozoa are intact or whether
      they are broken up?
      A. Generally the longer spermatozoa is – the longer amount of time of it
      being deposited to it being detected the more likely it’s not going to be
      intact. With spermatozoa, the tails are very fragile and tend to break off, so
      after a short period of time they start losing their tails and then what you
      find is only the spermatozoa heads, from sexual assault cases. So that can
      be an indicator of how long the spermatozoa has been in a particular place
      before it is actually collected and detected.
      Q. And in the thousands of rape kits that you have looked at, when a vaginal
      swab is taken in the traditional way that it’s taken, what’s the longest time
      that you ever personally saw a lapse between a sexual encounter and in
      finding a fully intact spermatozoa?
      ***
      A. In serology work, typically, sexual assault kits weren’t even collected
      more than 24 hours after an encounter because the chances of finding sperm
      is so rare. Generally, finding intact sperm at more than probably about 20
      hours, 20 to 24 hours, I don’t ever recall finding intact sperm more than
      that, from the time of the sexual assault and from the time the collection was
      made.
      Q. And that was in over thousands of rape kits?
      A. Yes.
51 RR 55-56. Consistent with Blakely’s false testimony, the import of Clement’s

testimony was unmistakable—intact sperm generally could not be found more than

24 hours after intercourse.



                                          20
      Clement’s e-mail clarification confirms the misleading nature of her trial

testimony. She explains both that (1) her expert testimony about only seeing intact

sperm after 24 hours was not based on the scientific literature and (2) because of

the processing of the thousands of rape kits that Clement examined—as opposed to

the directly applied smears examined by Blakely and Bayard—the rape kits were

inherently less likely to retain intact sperm. See Application Exhibit 2. Clement

now admits that her scientific opinion offered at trial was not actually grounded in

science and did not even apply to the examination of direct smear samples like

those collected and viewed by Dr. Bayardo and Ms. Blakely.


      The State’s attempt to rehabilitate Dr. Bayardo’s false testimony regarding

anal dilation also misreads the record and the science. First the State invites the

Court to ignore the new evidence in the application and rely only on the Court’s

prior opinion rejecting earlier criticism of Dr. Bayardo’s testimony relating anal

dilation under the considerably higher Schlup standard. See Motion to Dismiss at

40. However, the basis of this Court’s prior analysis of the evidence was its

reliance on other evidence establishing sexual assault which Dr. Bayardo has now

recanted and has been thoroughly discredited through the opinions of Dr. Spitz,

Baden, and Riddick who conclude that the State’s forensic case against Mr. Reed is

medically and scientifically impossible. See Application Exhibits 3, 4, 5.



                                          21
      Further, the Court cited Ms. Stites’s “life circumstances” and the absence of

credible evidence of a prior relationship. Ex parte Reed, 271 S.W.3d at 749. The

Application describes in great detail the extensive law enforcement records which

contradict the State’s rosy picture of Ms. Stites’s relationship with Mr. Fennell and

includes additional affidavits of two co-workers who had knowledge of the

relationship. See Application at 15-31; Exhibits 6 (Affidavit of Alicia Slater), 7

(Affidavit of LeRoy Ybarra). The evidence of Mr. Reed’s relationship with Ms.

Stites has now been supplemented by Ms. Stites’s own cousin, who has provided

an affidavit in which he recounts seeing Ms. Stites with Mr. Reed at a Bastrop area

Dairy Queen. See Exhibit A. As discussed supra Part III(B), this Court’s prior

consideration of parts of the evidence presented in the current application does not

control. See Hudson, 711 S.W.2d at 630.


      The State also criticizes the current evidence alleging that Applicant’s

experts do not “provide a timeframe in which one would expect to see anal

dilation.” Motion to Dismiss at 40. Although the experts will provide more

clarification on this point if asked at a hearing, Drs. Spitz and Baden both describe

post-mortem relaxation of the sphincter and the risk of misinterpreting this

phenomena as evidence of anal sexual assault. Application Exhibit 3¶8; 4¶9.

When these experienced forensic pathologists describe the post-mortem relaxation,

they are referring to the initial flaccidity that occurs immediately after death. See

                                          22
Spitz and Fisher at 101 (muscles become flaccid immediately after death followed

by onset of rigor mortis); 120 (noting common error of confusing “post-mortem

dilation and flaccidity” with evidence of sexual assault). This initial flaccidity is

the recognized cause of the dilation observed by Dr. Bayardo, and his trial

explanation of dilation naturally occurring only 4-5 days after death was false.

      This Court should take note that Dr. Bayardo has admitted in another case

that he was not aware of this basic problem in interpreting anal dilation at the time

of his testimony in Mr. Reed’s trial. Dr. Bayardo was criticized by the State and

his opinions were contradicted when he gave similarly false testimony for the

defense in Stevens v. State, 234 S.W.3d 748 (Tex. App.—Fort Worth 2007, no pet).

In Stevens, Dr. Bayardo was retained as a defense expert in a case prosecuted by

Assistant Attorney General Lisa Tanner—the same lawyer that presented Dr.

Bayardo’s testimony for the State against Mr. Reed. Kim Stevens was convicted

for the child abuse-murder of a child that she was babysitting. Id. at 750-51. Dr.

Bayardo testified that dilation he saw in the victim’s anus was evidence that the

child has been the victim of chronic anal sexual assault. Id. at 772. Even though

Tanner had sponsored Bayardo’s conclusion that anal dilation was evidence of

sexual assault in Reed’s case, the State cross-examined Dr. Bayardo at the Stevens

trial and elicited his admission that he was unaware of basic medical knowledge in

interpreting anal dilation:


                                          23
      He stated that he was not aware of how a medical professional should
      review a finding of anal dilation until the prosecutor showed him the
      medical authorities. He agreed that the medical literature says that a
      medical professional should be very cautious of equating anal dilation
      with sexual abuse because anal dilation may occur for many reasons.
      Until he was shown the medical literature, he was not aware that a
      correlation exists between a duodenal injury and anal dilation. He was
      aware of literature that anal dilation is not by itself an indicator of
      sexual abuse, but he would not change his handling of the case. He
      agreed that one of the books that he relied on said that anal changes
      could be postmortem anal dilation, which could be mistaken for
      sexual abuse.

Id. at 773. Dr. Bayardo’s admission during the 2005 Stevens trial demonstrates a

basic lack of understanding of the science discussing post-mortem anal dilation and

his rejected opinion of sexual assault in that case shows that Dr. Bayardo fell into

the common error warned of in the medical literature—that routine post-mortem

anal dilation should not be mistaken for evidence of sexual abuse.

      Ultimately, the State’s response to the new forensic proof of innocence asks

this Court to draw even more false inferences from bits of testimony obviously

taken out of context. The Court should not follow this cynical path. When the

new evidence is viewed in its totality, the Court can only conclude that the expert

testimony provided to the jury was unreliable, and left a false impression that no

responsible forensic scientist would today defend.




                                          24
      D.     The State’s Defense of its Unreliable Expert Testimony Predicting
             Future Dangerousness Does Not Comport with the Law or the
             Facts

      In its Motion to Dismiss, the State claims that Due Process was not violated

when its prison expert, Royce Smithey, testified in response to a hypothetical

question that Mr. Reed would be dangerous in the future. The State argues that

this expert opinion was not false, misleading or unreliable; but instead it was “just

not admissible under the Texas Rules of Evidence.” Motion to Dismiss at 41-42.

In yet another example of the State’s strategy of hiding the ball from this Court, the

State fails to acknowledge the obvious fact that the rule of evidence involved, Tex.

R. Evid. 702, is a test for reliability and relevance. See Coble v. State, 330 S.W.3d

253, 272 (Tex. Crim. App. 2010) (“trial judges must act as a true “gatekeeper”

when addressing the reliability and relevance of expert testimony”). In the context

of unreliable expert testimony, there is no distinction between admissibility and

reliability. Ultimately, the jury was presented with the opinion of a career TDCJ

employee who testified—with no reliable basis—that Mr. Reed would be

dangerous in the future. Whether it came from a psychologist, psychiatrist, or a

prison classification expert such as Mr. Smithey, the testimony was unreliable and

therefore false under this Court’s Due Process jurisprudence. See, e.g., Ex parte

Graf, Ap-11,003, 2013 WL 1232197 (Tex. Crim. App. March 27, 2013); Ex parte




                                          25
Henderson, 384 S.W.3d 833, 835, 849-50 (Tex. Crim. App. 2012) (concurring

opinions of Price and Cochran, JJ.).


      Furthermore, the State’s citation to an “overwhelming” punishment phase

case misses the impact of Mr. Smithey’s false testimony. Acknowledging that

Texas prisons are filled with serial offenders, the specific question asked by the

State drew on Smithey’s expertise as a classification expert—whether Mr. Reed

presented a danger to other inmates in the general prison population. 63 RR 64-66.

Further, the Court should not take the State’s one-sided characterization of the

additional aggravating evidence at face value. Mr. Reed absolutely disputes these

allegations and because the Texas death penalty sentencing scheme does not

require any specific findings as to aggravating factors, this Court cannot have

confidence as to which if any of the extraneous offenses alleged by the State were

actually believed by the jury. Among the list of sexual allegations levied against

Mr. Reed at the punishment phase, the only case that he was actually prosecuted in

(Connie York) led to an acquittal. No case was ever pursued against Mr. Reed

from allegations of sexual misconduct by Mr. Reed’s former girlfriends Caroline

Rivas and Lucy Eipper. And for the two allegations in which some physical

evidence linked Mr. Reed to an alleged sexual assault, the State has opposed Mr.

Reed’s request to utilize modern DNA technology to refute the 1998 era testing or



                                          26
discover possible evidence of tampering.6 The State chose Mr. Smithey’s expert

opinion as its closing witness for a reason. Once Mr. Reed was convicted of

capital murder, the jury knew that (1) Mr. Reed would be incarcerated for life and

(2) that the offenses alleged at the punishment phase were not typical violence that

would be expected between male prisoners. Smithey’s expert opinion was

therefore necessary to prove that despite his incarceration for life, Mr. Reed would

still be dangerous. This testimony was obviously intended to affect the jury’s

decision and in the context of the punishment phase allegations, was a necessary

factor in converting accusations of heterosexual rape into a propensity for violence

against other male inmates in prison.


                                                           E.                                                         The Totality of the Evidence Proves Innocence

                                                           Because the case for innocence is laid out in the Application, this Response

will only address those points raised by the State in its Motion to Dismiss that are

not covered in the Application. See Motion to Dismiss at 45-54. In its Motion to

Dismiss, the State attempts to paint the new evidence as “more of the same” and

otherwise unreliable. But as with many of the points raised in the Motion to

Dismiss, the State’s arguments do not hold up to a close examination of the record.

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
6
  Another discrepancy can be found in the State’s description of Mr. Reed’s arrest arising out of
the Schluter allegation, a case in which no physical evidence linked him to the crime and he was
identified in a suggestive photo lineup. In its Motion to Dismiss, the State asserted that Mr. Reed
was arrested for “kidnapping, beating, and attempting to rape and murder” Schluter. Mr. Reed
has reported, and evidence at a hearing should confirm, that the actual charge on which he was
arrested did not involve rape or kidnapping, but was for unauthorized use of a motor vehicle.
                                                                                                                                                                                                                                                    27
                                                           The State’s “more of the same” argument ignores the recent and dispositive

forensic discovery that Ms. Stites was murdered sometime before midnight on

April 22, 1996 and that her body was moved in Fennell’s truck to the spot where

she was found at least 4 hours after she was killed. See Application Exhibits 3 (Dr.

Spitz), 4 (Dr. Baden), 5 (Dr. Riddick). This discovery was made on October 21,

2014 by a disinterested7 retired NYPD homicide investigator, Det. Sgt. Kevin

Gannon as part of his review of the evidence for the television crime show “Dead

Again”. See Application Exhibit 40 ¶4-5 (Affidavit of Kevin Gannon). From his

review of the crime scene photos, video, autopsy report and law enforcement

investigation reports, Det. Sgt. Gannon noticed evidence of decomposition

pointing to a longer post-mortem interval and lividity patterns showing that the

body had been moved. Id. Neither the State’s forensic team during the murder

investigation or the forensic experts originally retained as part of the prior habeas

investigation conducted in 2002 noticed this evidence or recognized its importance.


                                                           After undersigned counsel was contacted by Det. Sgt. Gannon, his

observations were immediately presented to Dr. LeRoy Riddick, who confirmed

that Gannon’s conclusions were supported by the forensic medical science. See

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
7
  Detective Sergeant Gannon was not retained by Mr. Reed’s counsel, and the show Dead Again
is not focused only on covering cases of innocence. For example, “Dead Again” produced an
hour-long episode covering the Darlie Routier case in which Gannon and other officers agreed
that the evidence established the defendant’s guilt. http://www.aetv.com/dead-again/season-
1/episode-4 (last visited 4/6/2015)
                                                                                                                                                                                                                                                    28
Exhibit 5 ¶ 5 (discussing re-evaluation in fall of 2014). Undersigned counsel then

consulted with two of the most experienced and renowned forensic pathologists in

the country, Drs. Werner Spitz and Michael Baden. Both also agreed with Det.

Sgt. Gannon and Dr. Riddick that the State’s theory of Mr. Reed’s guilt was

medically and scientifically impossible. Application Exhibit 3 ¶ 3 (Spitz); Exhibit

4 ¶ 11 (Baden). The evidence is unquestionably new.


                                                           The State’s also renews its criticism of Mr. Reed for not presenting a

“cohesive theory” of innocence.8 Because undersigned counsel did not discover

the forensic evidence contradicting the estimated 3 a.m. time of death, we believed

and presented during the prior post-conviction proceedings the eyewitness account

of Martha Barnett who claimed to have seen Fennell and Stites arguing by the side

of the road on the morning of April 23, 1996 as well as evidence of another citing

of Ms. Stites that morning by the Praters. See Ex parte Reed, 271 S.W.3d at 717,

741-42.


                                                           Based on the new forensic evidence discovered first by Det. Sgt. Gannon in

October 2014 and confirmed by Drs. Spitz, Baden, and Riddick, there is no doubt

that the Praters and Ms. Barnett’s account were not accurate. See id. at 721

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
8
  This argument contradicts its “more of the same” contention because it is premised on the fact
that the forensic conclusions which rule out the State’s estimate of a 3 a.m. time of death and
prove that Ms. Stites was moved at least four hours after she was killed were not before this
Court in any prior proceeding.


                                                                                                                                                                                                                                                    29
(finding Barnett not credible in part because she had been arrested by Fennell).9

The new forensic evidence fills in the holes in the evidence before the Court in

2008 which led to the Court’s description of the innocence theory as “disjointed

and fragmented”. Id. at 746. The new forensic proof gives a much clearer

understanding of how and when Ms. Stites died, placing the murder at a time when

both Fennel and Carol Stites testified Stacey was at home with Fennell. The

evidence that Ms. Stites was killed at least 4 hours before she was transported in

the truck and dumped off the side of a gravel road is consistent with the theory that

Ms. Stites was killed earlier by Mr. Fennell and, more importantly, conclusively

disproves the State’s theory that Mr. Reed abducted Ms. Stites and murdered her

while she was driving to work at around 3 a.m.



	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
9
  The State’s reference to the discredited account of Martha Barnett highlights the role of
cognitive bias which likely contributed to the failure of all parties to discover what in retrospect
seems to be obvious forensic evidence disproving Mr. Reed’s guilt. Cognitive bias is a
recognized hazard in reliably investigating and adjudicating criminal cases. See Keith Findley
and Michael Scott, The Multiple Dimensions of Tunnel Vision in Criminal Cases, 2006 Wis. L.
Rev. 291 (2006) (discussing impact of cognitive bias as reflected in wrongful conviction cases).
In this case, the State’s theory of Mr. Reed’s guilt was built around the presumed fact that Ms.
Stites left for work around 3 a.m. on April 23, 1996. There was no reason to question Dr.
Bayardo’s estimation of a 3 a.m. (give or take an hour or two) time of death because it fit neatly
into the State’s theory of the crime.

        In the context of the earlier post-conviction proceedings, Dr. Bayardo’s flawed time of
death estimate likewise fit the newly discovered Brady evidence of Martha Barnett’s account of
seeing Fennell and Stites together within that time frame. While it is certainly unsettling to think
that tunnel vision affected the way that the parties investigated and presented the evidence in this
case, neither side had an incentive to re-examine Dr. Bayardo’s time of death estimate and, in
fact, both sides missed the forensic evidence discovered by Det. Sgt. Gannon that conclusively
disproved both side’s prior theory of the case.
                                                                                                                                                                                                                                                    30
                                                           Unable to truthfully undermine the new forensic evidence, the State next

revives this Court’s prior concerns that no credible witnesses could corroborate a

consensual relationship between Mr. Reed and Ms. Stites. The primary criticism

levied by this Court as to witnesses who previously offered testimony that they

knew of the relationship focused on the relationship between the witneses and Mr.

Reed or other aspects of these witnesses character such as a criminal history. See

Ex parte Reed, 271 S.W.3d at 737.10 None of these critiques apply to the new

witnesses who (1) have no motive to fabricate knowledge of a relationship between

Stites and Reed and (2) provide reasonable explanations for not coming forward

earlier.11


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
10
   In one instance, the Court relied on inaccurate scientific evidence in discounting the
credibility of Jon Aldridge, who corroborated Mr. Reed’s account of being threatened by Fennell
and stated that he saw Mr. Reed and Ms. Stites together once taking cocaine. Id. at 737 (citing
pre-trial hair drug test showing Stites was not “a cocaine user”). Attached to Mr. Reed’s
application is the Affidavit of Robert Johnson Ph.D., Director of the Toxicology and Chemistry
Lab at the Tarrant County Medical Examiner’s Office, who examined this report relied on by this
Court and concluded:
                                                           I do not believe that the toxicology test conducted in 1998 supports the conclusion
                                                           that Stacey Stites did not use cocaine, because the test could not detect occasional
                                                           use.
Application Exhibit 25 ¶ 14. Dr. Johnson explained that the sensitivity of the test done in 1998
would only detect cocaine matabolites in hair at levels resulting from heavy use, above 1000
nanograms per gram of hair. Id. at ¶7, 12 (results below 1000 nanograms were not reported).
When Mr. Reed sought to retest Ms. Stites’s hair using modern technology that would detect
occasional use (as low as 7.4 nanograms), the State objected. See Motion for Additional Testing,
Reed v. Dretke, 02-CV-00142 (W.D. Tex.) (Docket # 169).

11
  This Court should not place much weight on Mr. Reed’s denial of a relationship with Ms.
Stites when initially confronted by police after being arrested on drug charges. See Motion to
                                                                                                                                                                                                                                                    31
                                                          Unlike many of the witnesses rejected by this Court, the new witnesses

confirming the relationship did not know Mr. Reed personally, but were friendly

with Ms. Stites. Both Alicia Slater and LeRoy Ybarra worked with Ms. Stites at

the HEB. Although the State casts Ms. Slater’s account of Ms. Stites confiding her

affair as “patently unbelievable”, Ms. Slater acknowledges that she was “taken

aback” by the revelation. Application Exhibit 6 ¶5. However, it is quite

understandable that a teenaged girl in Ms. Stites’s circumstances would seek to

unburden herself of this secret to a friend who was not close to her family or fiancé

and would be more likely to be discrete. And Ms. Slater’s desire not to get

involved is also reasonable given the known corruption in Bastrop law

enforcement at the time and the level of intimidation by the police during the

months following the murder described by Mr. Reed’s retained counsel Jimmy

Brown. See Exhibit B (Affidavit of Jimmy Brown).


                                                          LeRoyYbarra was another co-worker at the HEB who witnesses interactions

between Ms. Stites and Mr. Reed. He was not affiliated with Mr. Reed’s family

and also had no motive to fabricate his account. Mr. Ybarra’s explanation for not
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
Dismiss at 46. A false denial in the context of this case, where Fennell (a law enforcement
officer) had previously threatened Mr. Reed is understandable. See Application Exhibit 38 ¶6
(Affidavit of Rodney Reed). False statements by an innocent person when accused of a crime
are common contributors to wrongful convictions. Roughly 25% of DNA exonerations involve
false confessions. See Douglas Keen and Rita Handrich, Only the Guilty Would Confess to
Crimes: Understanding the Mystery of False Confessions, The Jury Expert 2
(November/December 2012). The same dynamics that lead a person to falsely confess under
interrogation would likely apply with greater force to an innocence suspect making a false
exculpatory statement.
                                                                                                                                                                                                                                                                                                                                                                                     32
coming forward earlier was based on the reasonable fact that, as a completely

disinterested party, he did not know that what he witnessed had any bearing on the

case:


                                                           I did not read any more news articles about the death of Stacey Stites
                                                           because I have rarely taken the time to read newspapers or to watch
                                                           the news. I don’t know what happened between the two of them but I
                                                           thought it was a sad thing because they looked pretty happy when they
                                                           were together. I just thought it was a terrible tragedy.



Application Exhibit 7 ¶7. Because Mr. Ybarra didn’t know that the State

convicted Mr. Reed on the theory that he was a stranger to Ms. Stites, Mr. Ybarra

had no reason to come forward.12


                                                           And since the filing of Mr. Reed’s Application, Ms. Stites’s own cousin has

come forward with information that he saw Mr. Reed and Ms. Stites together one

evening at a Bastrop Dairy Queen:


                                                           5.     One Sunday evening, around five, or six o’clock in 1995, two
                                                           of my young children, Jaymi and Whitford, and I went to the Dairy
                                                           Queen in Bastrop to get some ice cream. I remember they were young
                                                           at the time—both were under the age of ten. I also remember it was a
                                                           warm day, but the weather was not hot or humid as is typical in Texas
                                                           summers. I believe it was sometime between October and November.
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
12
  The failure of bystanders to report information related to a crime is common and well
documented. Perhaps the most famous instance of this phenomena was reported in the 1964
murder of Kitty Genovese in a quiet middle-class neighborhood in Queens, NY where 37 people
witnessed the murder but did not call the police. See Martin Gansberg, 37 Who Saw Murder
Didn’t Call Police, New York Times (March 27, 1964).
                                                                                                                                                                                                                                                    33
At that time in my life I worked as a carpenter and did not get
Saturdays off. The only day I would have been able to take them for
ice cream would have been on a Sunday.

6.     As I pulled into the Dairy Queen in the Ford pickup I was
driving at the time, with my children inside, I remember seeing Stacey
coming out of the Dairy Queen with a black man. I hollered her name
to get her attention as I drove in, but she did not respond. I know they
heard me because both Stacey and the black man looked directly at
me, but neither came toward me. I have a rather loud voice; I easily
project and rarely have a difficult time being heard.

7.    Seeing Stacey with a black man did not surprise me because I
remembered what my parents told me about her dating and associating
with black men. Stacey, however, was shocked; she seemed
embarrassed when she saw us and she quickly left with the black man
without introducing me. Stacey and the black man got into a darker
colored car that Stacey was driving, and they drove off without
speaking to me or my children. I told my father of this incident, but to
me it was not a big deal at the time because I had been told that Stacey
associated with black men.

8.    Sometime after Stacey’s death I remember seeing pictures of
Rodney Reed on the news and in the newspaper after he became a
suspect in the death of my cousin. Rodney Reed is the same man I
saw with Stacey at the Dairy Queen in 1995. I understand that the
appeals courts have previously said that there were no credible
witnesses that would testify as to having seen Rodney and Stacey
together. I would have testified to my experience at the Dairy Queen
in 1995 at trial, but no one ever approached me to do so. Since then, I
have told other members of my family and would have told law
enforcement and prosecutors the same had they interviewed me or
shown any interest.

9.     Because of this information, and Stacey’s behavior at this time
in her life, I have always believed Mr. Reed’s story that he had a

                                   34
                                                           relationship with my cousin Stacey—despite the unfortunate pain it
                                                           brings upon my aunt Carol. I do not wish to cause her, or my family,
                                                           any more pain. I simple want to bring this truth to light.

See Exhibit A (Affidavit of Calvin “Buddy” Horton). Mr. Horton has bravely told

the Court what he saw that day even though it will create a rift in his family and

undoubtedly subject him to unwanted attention in the small community where he

lives. None of these witnesses have any motive to fabricate evidence that Ms.

Stites and Mr. Reed were in a relationship and each have provided a detailed

account of what they know and why they did not come forward earlier.13


                                                           The State’s response to Mr. Reed’s compelling evidence of innocence—like

its opposition to meaningful DNA testing—demonstrates an alarming refusal to

confront the evidence in this case head on. Once this Court reads past the State’s

distortion of the law and its misleading citations to the record, the evidence in Mr.

Reed’s Application provides a cohesive narrative pointing to Mr. Fennell as the

murderer and disproving the State’s theory of Mr. Reed’s guilt. The forensic

evidence sets the murder at a time that Ms. Stites was at home with Fennell and

indicates that Fenell dumped the body hours later in the spot where it was found.

Law enforcement records show that Fennell’s associates, especially his close friend

and Giddings resident Curtis Davis, had the opportunity to give Mr. Fennell a ride
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	   	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
13
  The State questions the credibility of these witnesses citing the fact that they didn’t come
forward in response to a $50,000 reward. See Motion to Dismiss at 53. But this argument
actually demonstrates a lack of financial motive to fabricate. Had these witnesses sought a
reward, the State would no doubt cite this as evidence undermining their credibility.
                                                                                                                                                                                                                                                    35
home after he left his truck in Bastrop. See Application at 25-26. And the new

credible evidence of a relationship between Mr. Reed and Ms. Stites both explains

the presence of Mr. Reed’s semen and provides motive for Fennell to murder his

fiancé. The evidence as a whole now establishes innocence under both the

Elizondo and the Schlup/section 5(a)(2) standards.


IV. Conclusion

      The Texas Legislature and this Court’s jurisprudence recognize that

evidence of innocence can be discovered long after conviction, even after multiple

rounds of post-conviction proceedings. Where persuasive evidence of innocence is

discovered, procedural barriers must fall and the Court should engage in a straight-

forward examination of the evidence. Cases like the exoneration of Anthony

Graves and the recent Alabama death-row exoneration of Anthony Ray Horton

stand as reminders it can take decades for the truth to surface after a wrongful

conviction.


      Mr. Reed’s case is no different. The nagging questions about the evidence

which this Court described in 2008 as a “healthy suspicion” of Fennell’s

involvement have now been shown to be the tip of the iceberg. The evidence

detailed in Mr. Reed’s application undermines every aspect of the State’s case and

provides a compelling and cohesive narrative of how and why Mr. Fennell could

have murdered his fiancé. This evidence falls squarely within the Court’s
                                         36
innocence jurisprudence as well as the newly recognized causes of action for new

science (article 11.073) and unintentional false testimony (Ex parte Chabot).

Accordingly, Mr. Reed asks this Court to order a full evidentiary hearing on the

claims for relief presented in his Application and, based on the evidence developed

at this hearing, grant his application reversing both his conviction and sentence of

death.


                                              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




                                         37
                          CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the above and foregoing
Response to State’s Motion to Dismiss Application for Writ of Habeas Corpus as
Abusive has been served on the attorneys for the State by placing same in the
United States mail, certified/return receipt requested, on this 7th day of April 2015,
addressed and electronically sent to:

Matthew Ottoway                            Bryan Goertz
Assistant Attorney General                 Bastrop District Attorney
209 West 14th St.                          804 Pecan St.
P.O. Box 12548                             Bastrop, Texas 78602
Austin, Texas 78711



                                              /s/ Bryce Benjet___________________
                                              BRYCE BENJET




                                         38
