Reed, Rodney

EXHIBIT 1
No. AP-77,054
IN THE _
Court of Criminal Appeals of Texas
RODNEY REED,
Appe]]ant,
V .
THE STATE OF TEXAS
Appe]]ee.
On Appeal from the 213t J udicial Distl'ict Court, Bastrop County, TeXaS
AFFIDAVIT OF BRYCE BEN.]ET
BRYCE BENJET
THE INNOCENCE PRO.TECT
40 Worth St.
NeW York, NeW York 10013
(212) 364-5340
(212) 364-5341 (fax)
A_ndrew F. MacRae
State Bar No. 00784510
LEVATINO|PACE LLP
1101 S. Ca,pital of Texas Highway
Building K, Suite 125
Austin, Texas 78746
(512) 637-8565
(512) 637-1583 (fax)
Attorneys For Appellant Rodney Reed
County of New York )
State of New York
)
)
Bryce Benjet, of lawful age, being duly deposed and sworn, states that:
l.
My name is Bryce Benjet. l am an attorney licensed to practice in the State of
Texas and counsel of record for Rodney Reed. I am over the age of 18 and
otherwise competent to give this affidavit
On January 13, 2014, I sent a letter to the Bastrop County District Attorney, Bryan
Goertz, asking for his agreement to conduct comprehensive DNA testing on the
evidence collected in the investigation of the murder of Stacey Stites. I provided a
detailed explanation of the reasons why this testing could prove innocence and
offered to conduct this testing at the expense of the Innocence Project. A true and
correct copy of the letter is attached as Appendix A to this Af_fidavit.
Soon thereafter, l spoke with Mr. Goertz, who informed me that he agreed that
DNA testing should take place in the interest of justice, but referred me to the
Attorney General’s Office to negotiate the details.
I had several conversations with staff from the Attomey General’s Office over the
next few months. Frustrated with the slow progress of these negotiations, I
suggested We expedite the process by agreeing to the testing of some items on an
interim basis While the Attorney General’s Ofiice continued to consider other
evidence. A true and correct copy of the e-mail I sent making this offer is attached
as Appendix B.
Based on my initial conversation with Bastrop District Attorney, Mr. Goertz, and
until the end of April 2014, I had believed that the State was going to agree to
conduct DNA testing on all relevant evidence lt was not until the end of April
that l learned from Assistant Attorney General Matthew Ottoway that the State
was not inclined to agree to test any evidence that did not fit within the Attorney
General’s narrow definition of biological material. This would be limited to
already identified biological fluids, rape kit samples, and hairs. I was surprised by
this position based on my initial conversation with the Bastrop County District
Attorney, Mr. Goetz. Mr. Ottoway informed me that no final decision could be
made and that we would have to wait until his supervisor returned from vacation
in mid-May. We planned to speak on May 15, 2014, but the Attorney General’s
Office asked for more time, as shown in the May 15, 2014 e-mail of which a true
and correct copy is attached as Appendix C. The final decision from the Attorney
General’s Office limiting the scope of the agreed DNA testing was not announced
to me until late May 2014. At this time I was working on the Petition for Writ of
Certiorari seeking review from the denial of federal habeas corpus relief, drafting
an order reflecting the agreed DNA testing, as well as drafting Reed’S motion for
post-conviction DNA testing in advance of a scheduled hearing to set an execution
date. '
6. After the State filed its response in opposition to DNA testing, I wrote the trial
judge on October 7, 2014 asking that a hearing be seton the merits of DNA
testing A true and correct copy of this letter is attached as Appendix D. In
advance of that request, I discussed the hearing with Assistant Attomey General
()ttoway. He asked that any hearing that was to be scheduled take place at least a
week after his return from a vacation spanning most of the month of 0ctober, and
that later in Novernber would be better. I accommodated this request with the
understanding that it would not be used by the State against my client.
75?549-W]1SR01A - MSW
7. On Monday, January 26, 2015, l received a CD via Fed Ex from the Attomey
General’s Office. On this CD are two audiotaped witness interviews containing
information that is helpful to Mr. Reed and requires additional investigation In
particular, one interview describes an internal and previously undisclosed
investigation of limmy Fennell by the Giddings Police Department, which was
known to Nathan Lapham. Mr. Lapham was a witness called by the State during
Mr. Reed’s last habeas hearing, but, he did not mention this investigation At the
hearing, Mr. Reed’s counsel was expressly precluded from questioning Mr.
Lapham more broadly concerning Fennell and the Stites murder.\ The State has
previously taken the position that the Giddings Police Department was not
involved in the investigation Another interview concerns what may have been an
eyewitness account of a heated argument between Fennell and Stites around the
time of the murder.
Further affiant sayeth naught.
Bryce Benjet
Subscribed and sworn to, before me, a Notary Public, this 30th day of January 2015 , by
Bryce Benj et who is personally known to me or has shown adequate identification:
Notary Public
MADELINE H. deLO“'
No£ary Pubtfc, State Ot Nev§ ibrk
eni-itt 122353157225
_ _ _ _ or '
_Commtssion Expires Marcl(iki[é?tgo /‘? t
APPENDIX A
Maddy deLone, Esq.
Executiva Direetor
j Newvork, Nv10013
Tel 212.364.5340
Fax 212.364.5341
wwwinnocenceprajectoty
January 13, 2014
Hon. Bryan Goertz
Bastrop County District Attorney
804 Pecan St.
Bastrop, Texas 78602
Re: Proposal for Agreed Forensic Testing
Dear Mr. Goertz:
I am writing on behalf of my client Rodney Reed to ask for your agreement in conducting DNA
and other forensic testing on evidence retained in the case. There have been significant advances in
the science of DNA testing since Mr. Reed's 1998 capital murder trial for the murder of Stacey Stites.
These advances allow us to detect the DNA profile of a person from even a few skin cells left during
this violent strangulation murder_vvhereas the technology available in 1998 was limited to larger
samples of tissue or bodily tluids. By utilizing the new technology in DNA and other forensic testing,
we are now capable of providing dispositive answers continuing Mr. Reed:s consistent claim of
innocence The cost of this agreed testing Will be paid for by the Innocence Project.
I have attached a list of evidence that Was collected in the case that I believe is (1) suitable for
DNA or other forensic testing and (2) capable of producing results that can prove Mr. Reed’s
innocence See Appendix A. This evidence includes:
o 'l"he belt used to strangle Ms. Stites
o Biclogical samples taken from Ms. Stites’ body
v Relevant areas of Ms. Stites’ clothing
Benjamin N. Cardczo Sch col cf Law, Yeshiva Un|\rersity
|nnocence Pro]ect, |nc.
January13, 2014
Page 2
- Hairs found on Ms. Stites’ body and clothing
0 Ms. Stites’ name tag left by the perpetrator on her body
¢ Iterns on the ground near truck
0 Condoms found near Ms. Stites’ body
l Fingerprints found on Ms. Stites’ truck and other items
l White T-shirt found near body
The Texas legislature recently enacted a law requiring § suitable evidence collected in a
capital murder prosecution to be subjected to DNA testing. See Tex. Code Crim. Proc. art. 38.43(i).
Especially where Mr. Reed has consistently claimed innocence and legitimate questions have been
raised indicating a third party’s guilt, it is appropriate to conduct the same level of forensic testing that
Would be done in a current capital murder prosecution Conducting this post-conviction testing by
agreement and in the interest of justice will conserve judicial resources and that of our respective
offices which would otherwise be spent on contested litigation under Chapter 64 of the Code of
Criminal Procedure and other available remedies. Expeditious DNA testing by agreement now will
also ensure protracted litigation under chapter 64 does not interfere with the course of the pending
habeas proceedings
New DNA and Other Forensic Testiug Cao be Pert``ormed on the Evidence
DNA testing has come a long way since 1998. At the time of the trial, forensic DNA testing
was geared towards bodily fluids such as blood, semen, and saliva. The increased sensitivity of
today’s DNA tests allow profiles to be obtained from only a few cells that are Shed during a struggle or
rough handling of a body or item. Flurthermore, certain DNA technology is now designed to obtain
results from degraded and contaminated samples that would not have been suitable for testing in the
past. Y-STR testing looks only at male DNA, allowing miniscule amounts of a male perpetrator’s
DNA to be detected when it previously would have been masked by a female victim’s prolile. And
finally, mitochondrial DNA testing can be used to obtain DNA profiles from hairs that have, to date,
only been examined microscopically.
There are a number of items that have never been subjected to DNA testing that could produce
dispositive results. Items that were tested in 1998 can also be subjected to the considerably more
advanced and sensitive DNA techniques described above.
|nnocence Project, lnc.
January 13. 2014
Page 3
Forcl'bly handled or grabbed items
The most obvious items for testing are the pieces of the belt used to strangle Ms. Stites
_ and portions cf Ms. Stites’ clothing that were forcefully grabbed The perpetrator certainly
`` handled Ms. Stites’ belt with enough force to both strangle her and break the belt in two.
Furthermore, Ms. Stites was partially disrobed by the perpetrator and carried out of the truck
and into the brush The handling of Ms. Stites’s jeans was so forceful as to have broken her
zipper. The belt and areas of Ms. Stites’s clothing that were grabbed by the perpetrator during
a struggle or while dragging the body will contain skin cells that can now generate a DNA
profile The same may be true for items handled by the perpetrator during and after the violent
struggle such as Ms. Stites’s nametag and items found outside of her truck. Findiug the DNA
prcEle of a third party on these probative items (especially if the same profile is discovered on
multiple items) will be powerful evidence that the source of this DNA is the perpetrator of this
crimc, and not Mr. Recd.
Fingerprints
There were a number of unidentified fingerprints collected in the case, including from
Ms. Stites’ truck and items likely handled by the perpetrator. It is unclear whether these prints
were entered into the IAFIS data base where they are compared against known offenders or
other unidentified forensic samples Further, fingerprints arc known to contain skin cells from
their source. DNA testing of latent lifts has been found capable of detecting at least partial
DNA profiles in some cases.
Bodily fluids
Althougll some of the items that could contain relevant sexual assault evidence were
likely rooted lo 1998,1 the advances in DNA roohoology warrant additional zoning or lois
evidence Testing should be done on any remaining portions or extracts of sexual assault
evidence and the oondoms collected from the scenc. Although the condoms were discounted as
“cld” at trial, DNA testing that shows a mixture of the victim’s DNA and a third party on the
coudom would contradict this assumption and implicate the third party in the crime. The fact
that the condoms may have been collected by a third party should not deter testing either-the
method of collection cannot discount the potential relevance of the evidence See In re Michnel
Morron, 326 S.W.3d 634 (Tex. App._Austin, 2010, no pet.) (DNA testing of bandana
collected by relative of defendant resulted in exoneration of Merton and identification of actual
perpetrator). Testing of sexual assault evidence from Ms. Stites can also reveal previously
undetected amounts of semen or chemical lubricants left after intercourse With a condom.
Har°rs
Arld finally, DNA testing of hairs can now be accomplished either through traditional
DNA testing of the roots of the hair or specialized mitochondrial DNA testing of the hair shaft
This can be done to identify the source of unknown hairs found on Ms. Stites’ body and
clothing
1 Even if it appears that physical items of evidence Were fully consumed in prior tcsting, labs often retain unused extracts of
DNA taken from the evidence Thcse extracts can be excellent sources for subsequent testing.
Innocence Project, |nc.
January 13, 2014
Page 4
DNA and Other Forensic 'I‘esting Can Exonerate Mr. Reed and Identify the Perpetrator
Throughout the course of the investigation, there were a number of suspects identified
including limmy Fcunell and David lawhon-both with a history of similar sex offenses DNA was
collected from many other suspects as well. The DNA testing discussed above can both exclude Mr.
Reed from crucial physical evidence in the case and generate DNA profiles for comparison to these
and other known suspects Moreover, DNA profiles can be submitted to DNA databases to identify a
perpetrator who has been previously overlooked
Reteslr‘ng SexualAssault Evl'dence
Retesting of the sexual assault evidence is particularly important in light of the
inconclusive trial DNA results from the rectal,swab and the recent sworn statement by retired
Travis County Medical Examiner Rcberto Bayardo, M.D. Although DNA testing at trial
confirmed that the sperm found in Ms. Stites vagina was almost certainly Mr. Reed’s, the
results of the testing of the rectal swab in this case was inconclusive Although the State’s
retained expert testified that Mr. Reed could not be excluded from the single DNA marker
detected, she was unable to provide any statistical relevance to that result Modern DNA
testing has the capacity to identify a profile that is statistically unique to the population of the
planet.
Furthermore, Dr. Bayardo has re-evaluated the case and now states that the forensic
evidence suggests that Mr. Reed and Ms. Stites had consensual sex more than 24 hours before
her death. While Dr. Bayado believes that Ms. Stites was anally assaulted at or near the time of
her death, be concludes that this was done either with a foreign object cr by a person who did
not ejaculate. Excluding Mr. Reed from the sperm fraction of the rectal swabs or finding a
another man’s sperm in the sexual assault evidence or mixed with Stites’ DNA on the condom,
for example, would corroborate Dr. Bayado’s sworn statement and demonstrate that the source
of the foreign DNA is the likely perpetrator.
Testl``ug the Belt, Clothing, and Other Irems Harldled In the Struggle
Modern DNA testing can detect a DNA profile that is unique to the population of the
planet from a microscopic amount of skin cells or other biological material. We know that the
belt, Ms. Stites’ clothing, and other items Were handled forcefully by the perpetrator timing the
commission of the crime and the disposal of Ms. Stites’ body. DNA testing of these items can
now detect the profile of the perpetrator where the technology in 1998 could not.
It is reasonable to assume that the source of a foreign DNA profile on the ends of the
belt used to straugle Ms. Stites, for example, would be significant evidence of the guilt of the
person associatedl This would be more powerful if the same profile was found on both halves
of the belt_despite being left in separate locations and collected by different people.
Innocence Project, Inc.
January 13 2014
Page 5 ‘
The relevance of finding a foreign DNA profile becomes stronger as this profile is
found on more probative items. lf, for example, the same DNA profile is found on (1) both
halves of the belt used to strangle Stites, (2) the shirt alleged to have been used to wipe for
prints, (3) the waistband of Stites’s jeans by Which she Was dragged into the Woods, (4) the
name tag placed by the perpetrator between Ms. Stites’s legs, and (5) other items strewn
outside of the truck; then it likely that the source of the DNA is the perpetrator. Indeed the
Court of Crirninal Appeals recognized the importance of this type of redundant DNA evidence
when it authorized DNA testing in the Darlie Routier casc. See Rontier v. State, 273 S.W.Sd
241, 257-58 (Tex. Crim. App. 2008).
The importance of such evidence would be increased even more if DNA profiles
obtained from handled evidence matched the DNA detected from testing the hairs or the sexual
assault evidence or was consistent with a person identified from fingerprints
Matching Know Suspect or Kncwn Ojfender in DNA Database
DNA results, like Hngerprints, can be used to positively identify an unknown suspect
through a database search or comparison to a known suspect ln this case, Jimmy Fennell is the
most likely alternative suspect While it would be expected to find Mr. Fennell’s DNA in his
truck or even on Ms. Stites, finding Fennell’s DNA on areas directly linked to the crime such as
the ends of the belt cr areas of Ms. Stites’s clothing forcible handled by the perpetrator must be
seen as evidence of Fennell’s guilt The presence of another known suspect’s DNA in these
areas would likewise have no innocent explanation And linally, a DNA profile obtained from
the evidence can be uploaded to the state and national CODIS DNA database. This comparison
could reveal the profile of a previously unknown suspect as it did in the recent Texas
exonerations of lnnocence Project clients Michael Morton and Randolph Arledgez. Roughly
50% of the 300+ DNA exonerations in this country have resulted`` 111 the identification of the
actual perpetrator.
Conclusion
For the reasons stated above, DNA testing can provide powerful evidence that both exonerates
Mr. Reed and identifies who really committed this crime. The State did not have the benefit of current
technology when it prosecuted Mr. Reed in 1998. And if Mr. Reed were prosecuted today, Texas law
Would require all of the DNA testing requested in this letter to be performedl
Therefcre, l respectfully request that you consider performing this testing by agreement as an
alternative to litigation under Chapter 64 and/or other available rcmedies. The Innocence Project will
pay for all agreed testing at a mutually agreed independent and accredited laboratory.
2 Morton was proven innocent after a search of the CODIS database identified Bastrop resident Marlr Allan Norwood who
was later convicted of a similar murder in A.ustin. Mr. Arledge was shown innocent after a CODIS search of evidence from
a multiple stabbing murder matched David Simms who worked near where the victim disappeared and who had been
convicted a few years earlier of another multiple stabbing. Ex Parte Arledge Nc. AP76-974 ('I``ex. Cri.rn. App. 2013}.
lnnocenee Projeot, lnc.
January 13, 2014
Page 6
Please dc not hesitate to contact me if you have any questions about this proposal or need any
additional information l look forward to working with you on this matter. t
Sincerelyil :
Bryce Benjet
Staff Attorney
cc. Mark Chehi, Skadden, Arps, Slate, Meagher & Flom LLP
Amirew MacRae, Levatino Pacc, LLP
APPENDIX A
RODNEY REED EVIDENCE FOR TEST[NG
EVIDENCE FOUND AT HIGH SCHOOL
DATE OBTAINED ITEM(S} SOURCE LAB EVIDENCE RESULTS CURRENT
COLLECTED BY SUBMISSSION? PROCESSING LOCATION
4/23/95 Sgt.WalkeI/' White On 4/23/96 / Item latent Prints DNA Sec.
BPD paper ground #26 Pdntstemen !Neg. DPS Lab
napk:in near truck Semen
4/23/96 Sgt.Walker/ Piece of On 4/23/96 / 111-4 Match to belt Positive Crim. Sec.
BPD Blue ground from scene lD/torn not DPS lab
Braided near truck cut
Belt
4/23/96 Sgt.Walkerf White On 4/23/96 l Item Latent Prints Prints DNA Sec.
BPD HEB lnk ground #27 DPS lab
Pen near truck
4/23/96 Sgt.Walker/ Carbon On 4/23/96 litem latent Prints LI,LM DNA Sec._
BPD copies of ground #28 (23¢), LR Of DPS lab
checks near truck Fennell
EVIDENCE RECOVERED FROM TRUCK
DATE _ OBTA]NED fI``EM(S] SOURCE LAB EVIDENCE RESULTS CURRENT
COLLECTED BY SUBMISSION? PROCESSING LOCAJT__ION
4/24!96 Wardlow Gas Pass. side 4!24/96 Item #2- latent Prints Unknown DNA Sec. DPS
Emereen¢t door 35th rerun lab
b°°k ecket
tex #36) 13
4/°24/96 Sandifer latent Pass. side 4/24/96 by TS Compare to Unknown Latent Sec.
finger in parties result DPS lab
print Window
(ex #373.) gl§s
4/24!96 Wardlcw Pulse On seat 4/24/96 Item #2- latent Prints Unknown DNA Sec. DPS
Withdraw below 38b/TS result lab
al slip (ex armrest
rssb)
4/24/96 Wardlow Bridal Center 4/24[96/Item #2- latent Prints Unlmown DNA Sec. DPS
Shop drink 39/'[``8 result lab
Receipt holder
(ex. #39
4/214/96 Wardlow Green Center 4/24/96/Item #2- latent Prints Unlrnowu DNA Sec. DPS
Cigarette drink 40/TS result lab
lighter holder
(ex. #40)
4/24/96 Wardlow Meial Center 4/24[96/Item #2- latent Prints Unknown DNA Sec. DPS
Box drink 4lfl’S result lab
Cutter holder
(ex #41)
4/24/96 Wardlow Pack of Front 4/24/96/Ite1n #2- Latent Prints Unknown DNA Sec. DPS
Big lied floor- 42/TS result lab
(ex. #42) board
near
shifter
4/24/96 Wardlow Wal-Mart Front 4/24/96/Item #2- latent Prints Unlmown DNA Sec. DPS
receipt ashtray 43c/I'S result lab
ex. #43c)
4/24/96 Wardlow Business Sunglass 4/24/96/Item #2- Latent Prints Unknown DNA Sec. DPS
card: compart- 44/TS result lab
R. ment<
Kavieff =
(ex #44)
4/24/96 Wardlow Blue/ Bed of 4/24/96/Item #2~ latent Prints Unknown DNA Sec. DPS
Yellow pick-up 45/TS result Lab
plastic truckl
bag '
tex #45) _
4/24/96 Wardlow Gold Frontl 4/24/96/Itern #Z- latent Prints Unknown DNA Sec. DPS
hoop floorboar 48/TS result Lab
earring d
(ex #48)
4/24/96 Wardlow Knife in Rear 4/24/96/113111 #ll- Body No DNA Sec. DPS
scabbard floorboard 54/wY&Ts nuids/rscen: fluids/one lab
(ex #54) (“fas Prints Result
Sntes} _
4/24/96 Wardlow Blue Bed of 4/24/96 by Kept for NIA DNA Sec. DPS
nylon pick-up Wardlow comparison lab
rope truck
(ex #55)
4/24!96 Wardlow Brown Bed of 4/24/96 Wardlow Kept for N/A DNA Sec. DPS
rope pick-up comparison lab
(ex #56) truck
EV]])ENCE LOCATED AT CRIME SCENE
DATE onTAmnn rrEM(s) soUnCE LAB EVIDENCE RESULTS CURRENT
COLLECTED BY SUBMISSION? PROCESSING LOCATION
4!23/96 R. Wa.rdlow Breided Edge of 4/24/96/Item Cornpare to belt Physically Crirne Sec.
belt roadway #III-S/GL from school matched DPS Lab
(ex #18) two pieces
4/23!96 R. Wardlow White T- In shrubs/ 4/23/96/[tem #I- Trace No Crime Sec.
shirt brush SIGL evidencebedy evidentiary DPS Lab
(ex #8) fluids stains/dirt
on shirt
EVIDENCE RECOVERED FROM VICTIM
DATE OBTAINED ITEM SOURCE LAB EVIDENCE RESULTS CURRENT NO'I``ES
COLLECTED BY (S) SUBMISSION'.’ PROCESSING LOCATION
4/23/96 Wardlow/ Strand left sock 4/23/96/Item Compare to Not Crirn. Sec. Reporr
Blakely of (ex #3) #1-3/GL Y &. involved consistent DPS lab (5“17~97
Hair SR parties With by_ SR_
Fennel, m,d this
Barton or halt ms
victim. lmch
CDI!SISIB!H
Somewhat with
similar and vic¢im)
dissimilar
to Comer
4/23/96 ``V\frirrilow,l Strand Back of 4/23/96/Item Compare to Similar to Crim. Sec.
Blakely of left leg #1-4/GL & SR involved Stites DPS Lab
Hair (ex #4) parties
4!23;'96 Wardlowf Strand On back 4123!96!ltem Compere to Not Crir.n. Sec. Report
Blakely of near bra #1-6/GL involved consistent DPS Lab (6-17-97
Hair (ex #6) parties with said
victim, unsuit-
Fennell, able for
Barton or comp-
Comer arison)
4/23/95 WaIdloW/ Tape Pubic 4/23/96/Iten1 Tracc l head hair Crirn. Sec. Hajr"
Blakely Lift Arca #I-ZO/GL & Evidenccf detectcd, DPS Lab similar
(cx #20) WY DNA unable to and dis-
extract similar
DNA to '
Comer
4/23/96 Wardlow Blue On victim 4/23/96/Item Trace Wool DNA Sec.
cotton (ex #16) til-16wa & evid./Blood/ fibers/no DPS Lab
pants GL Semen body fluids
4/23/'96 Wardlow Black On victim 4/23/96/Item Trace Fabric/ DNA Sec.
bra (ex #23) #I-ZS/WY & evidJBlood/ underwire DPS Lab
GL Semen melted
4f23/'96 Wardlow Green On victim 4/23/96!Item Trace Semen[DQ DNA Sec.
cotton (ex #17) #1-17/ML & evid ./Blood/' alpha DPS Lab
Panties GL Semen (#)
4/23/96 Wardlow I-IEB In crook 4/23/96/Item Prints Unknown DNA Sec.
plastic of right #1/TS results DPS lab
name leg
bag (ex #1]
EVIDENCE LIST FROM ME’S OFFICE
DA'I``E OBTAINED lTEM[S) SOURCE LAB EVIDENCE RESULTS CURRENT
COLLECTED BY SUBMISSION PROCESS]I*JG l)OCAT!ON
4/24/96 Bayardo Vaginal Victim’s ME Tox/Dps Process of Pos. (M``E) / DNA Sec.
Swabs vagin_a #VI-l/WY Semen/DNA Pos. (DPS) DPS Lab
4/24/96 Bayardo Rectal Victirn’s ME Tox/Dps Process of Neg. (ME)/ DNA Sec.
Swabs anus/rectum #VI-S!”W y Semen/DNA Pos. (DPS) DPS Lab
=l¢ $
EVIDENCE TAKEN FROM WITNESS
DATE OBTAINED ITEM SOURCE LAB EVI|]ENCE RESU'LTS CURRENT
coLLEcTEn BY {s) sUBMIssroN? PRocnserG LocA'rroN
4/29/96 Offlcer Piece of Michelle Not submitted NfA N/A BSCO
Scoggins shirt, (2) Clifton Property
condoms, Room
piece of
knife
APPENDIX B
1130/2015 innocence Project, inc Nlail - RE: Phone call on Reed
int nuts
l l|l|liliili| illiiii ill
RE: Phone call chile-ed
1 message
Bryce Benjet
Bryce Benjet Thu, Apr 17, 2014 at 9:28 AiVi
To: iViattheW Ottowey , AndreW iVlacRae

lvlatt,
Tuesday is a better time, l can be in the office and much more useful.
Andrew was in Bastrop last week and saw that the physical exhibits had been wrapped in paper. if these are
ready to go, maybe we can do an interim order releasing these while we work out location of other evidence.
This might give lab something to get started on to expedite.
Have you heard back from other agencies on status of evidence and data/reports? if you have anything for me
to review, please send it on.
i‘d like to review the Cellmark file from Meghan Clement. With your permission, l will contact her, ccd to you for
authorization to reiease. .
Also let me know if you think the E| Peso order is a good template, and l can work it up for Reed.
One topic l think we should discuss on the cell is whether any agreed order will be under Chapter 64 jurisdiction
its not usually en issue in noncapital cases, but if a date is set, l think the order should cite Chapter 64 so that
the court has authority to modify or withdraw if necessary.
Bryce
On Apr 17, 2014 9:07 AiV|, "Otloway, |V|atthev\i" Wrote:
Bryce,
Unfortunateiy, that time Won't vvor|< for me. Cen we try early next week-2:00 p.m. CT on Tuesday?
lV|ett
From: Bryce Benjet [mailto:bbenjet@innocenceproject.org]
Sent: Thursdey,r Apri| 17, 2014 7: 19 AM
To: Otl:oway, Matl:hew
Subject: Phone cell on Reed
iVlatt,
Can we move today's call back to 3:45 your time?
Thanks,
htl;ps:l/mai|.google.comlmailiu/‘ll?ui=2&ik=?OchfoSB&view=pt&as_to=rnanhew.ottm~ey%4Dtexasattorneygenerei.gov&as__sizeoperator=s__s|&as_sizeunit=s_s... 11'2
1130/2015 innocence Project, inc lVlai| - RE: Phone callon Reed
B ryce
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APPENDIX C
1130/2015 innocence Prcject, inc Nlail - Rodney Reed -- Today's Phone Call
Bryce Benjet
Rodhey Reed ;'-"'Today"s Phshe call '
1 message
Ottoway, Matthew Thu, lV|ay 15, 2014 at 11:18 AlVl
To: Bryce Benjet
Bryce,
Ed just got back yesterday and, as you can imagine, is having to play catch up. Are you available at either
10:00 a.m. or 2:00 p.m. on lVlonday or Tuesday of next week? Sorry for the late notice.
lVlatt
|Vlatthew Ottoway
Assistant Attomey Genera|
Office of the Attorney General of Texas
Phone: 512.463.7463
Fax: 512.320.8132
Email: matthew.ottoway@texasattorneygeneral.gov
htlps:llmail.google.comlmail!w1/?ui=2&ik=70ch0ff38&view=pt&q=ottoway%20after%3A2014%2F2%2F16%20before%3A2014%2F6%2F17&qs=true&search=... 1/1
APPENDIX D
\a,/'
,;ax§12.364.5341
Hon Dou_g_ Shaver
21st Dislr``ict Court
804 Pecan St.
Baslrop, Texas 78602
Fax (512) 581-403.8
Via fax and U.S. mail
Re: Hearing on DNA Motio'n, Reedv. State, No. 8701
Dear Ju``dge Shaver:
l am writing to update you on the status of the case and to request sheeting 011 our pending
DNA moho'n'. I have c theis avmlable for
' ~ Ottcway asked that
any hearing he scheduled
thn we discussed the case in chambers at this summer s heanag to set the execution date,
1 had just filed M``r Reed*s )NA motion and the Coui't acknowledged that a hearing would be set oh
the motion On September 12,21}1:'4,thel State tiled aresponse t'o`` 111eDNA.1:notion_, andl Will file Mr.
Reed’s reply with evidence attached well' 1a advance ot`` any hearth5. Mr. 'R'eed“s caseis a factually
and procedurally complsx, and the Cour_t will be asked to make findings oh contested factual issues
and to rule on disputed questions of law. I believe that a full day setting is required because the Court
will be called upon to consider and resolve contested testimony from expert Wihl_esses regarding the
condition of the evidence and the capacity ofDNA teslihgi If the Court is not inclined to set a heating
on November 24 or 25 as an administrative matter,_ple'ase let me know as soon as possible andl will
tile a format motion.
seem N_ causal school oftaw, rehire merely
District Clerl<, Bastrop County
233
- '_ \-~___ ``_,-..___
lnnoc_enco Project, hic.
Oclober 7, 2014
Pags 2
Update on Liniited Agreed DNA 'l``estilig:
I filed Mr. Reed’-s DNA motion this summer after six months of negotiation with the° Attorney 1
General’s O.ffice resulted' in only a limited agreement by the State to test sexual assault evidence iio``ni ,
the body of the murder victim and a few hairs. Pursnant to that limited agreement and this Court’ s
' order, the evidence was forwarded to the Garland Texas DPS DNA lab for testing. 'I``hat evidence has
since been inventoried and preliminary testing should be underway. I hope to be able to provide the
Court with a further update on the progress of this testing at shearing`` m Novemher.
Howevcr, the agreed testing does not include relevant ite:ns such as the belt used to sti'angle
die .t..m~h°-i.ie.hrag-=rssd-t., arsg-lisitv- n,.,d, in‘e“~e'e“s=.i. -aadahestst`` inn itcn.isiin=shsdia-`` site -- ‘
crime that are cmrently held by TXD``PS, the Attorney Genei'al’s evidence room, or the Distri'ct Clerk’s
Otiice. The Iriiiooencs Project’s' request to have this additional evidence tested by a fully accredited
Texas Laboratory that contracts with DPS at our own expense will be the subject of the hearing_.
I thank you for accepting this appointment as a visiting judge and lending your time,
experienoe, and judgment to this important matter. Arid I again ask that the Conrt set the matter for a
hearing administratively or provide notice that aforrnal motion is required
Sin'cerely,
ryce Benjet
Sta;E‘Attor'ney, lnnocence Proj set
40. WQTth__:_St-',\ S\_lit€ "-'/'0_-1
Nc-W Y_Q``t'i<, NY 100-13
tax
cc. Mait Ottoway, Assistant Attorney General
1=11_ED 502%(
DAT ``
- Sara. 20/§[
Dlsirlct Clert<. Bas'trop County
1311
\W,/ o,
EXHIBIT 2
1."30/2015 13-70009 Docket
Genera| Docket
United States Court of Appea|s for the Sth Circuit
Court of Appea|s Docket #: 13-70009 DOCkefedl 03/05/2013
Nature of Suit: 3535 Habeas Corpus ~ Death Pena|ty Termed: 01/10/2014
Rodney Reed v. Wi||iam Stephens, Director
Appea| From: Westem District of Texas, Austin
Fee Status: |n Fon'na Pauperis
Case Type |nformation:
1) Death Pena|ty wl Counse|
2) State
3)
Originating Court lnformation:
District: 0542-1 : 1:02-CV-142
Court Reporter: Ariinda Lou Rodriguez, Court Reporter
Originating Judge: Lee Yeake|, U.S. District Judge
Date Filed: 03/05/2002
Date NOA Filed: `` Date Rec'd COA:
03/01/2013 03/01/2013
Prior Cases:
None
Current Cases:
None
Panel Assi¢nment:
Pane|: CDK EBC SAH
Date of Hearing: 12/04/2013 Date of Decision: 011'10/2014 Date Comp|eted: 01/10/2014
RODNEY REED Bryce Benjet, Esq.
Petitioner ~ Appe||ant Direct: 212-364-5980
Email: bbenjet@innocenceproject.org
Fax: 212-364-5341
[COR LD NTC CJA Appointment]
|nnocence Project
Suite 701
40 Worth Street
New YoFk, NV 10013-0000
|Vlark Stephen Chehi, Esq_
Direct: 302-651-3160
Emai|: mchehi@skadden.com
Fax: 302-651-3001
[COR NTC Pro Bono]
Skadden, Arps, S|ate, |V|eagher & F|om, L.L.P_
900 N. King Street
_ 1 Rodney Square
Wi|mington, DE 19301-0000
Nico|e Andrea DiSa|vo, Esq.
Direct: 302-651-3027
Ema``l|: ndisa|vo@skadden.com
Fax: 302-434-3027 ``
[COR NTC Pro Bono]
Skadden, Arps, S|ate, N|eagher& F|oml L.L.P.
900 N. King Street
1 Rodney Square
Wi|mington, DE 19801-0000
Jason Michae| Liberi
Direct: 302-651-3023
Emai|: jason.|iberi@skadden.com
Fax: 302-434-3023
[COR NTC Pro Bono]
Skadden, Arps, S|ate, N|eagher & F|om, L.L.P.
900 N. King Street
https:Ilecf.ca§.uscour|s.gov/cmecflservlet!TransporfRoom 1/9
1/30/2015 13-70009 Docket
R|CK THALER, D|RECTOR, TEXAS DEPARTN|ENT OF
CR|M|NAL JUST|CE, CORRECT|ONAL |NST|TUT|ONS D|V|S|ON
Terminated: 05/31!2013
Respondent - Appe||ee
W|LL|AIV! STEPHENS, D|RECTOR, TEXAS DEPARTN|ENT OF
CR|IV||NAL JUST|CE, CORRECT|ONAL |NST|TUT|ONS D|V|S|ON
Respondent - Appe|lee
1 Rodney Square
Wilmington, DE 19801-0000
Andrew Fair|es N|acRae
Direct: 512~637-8565
Emai|: andrew@|pfirm.com
Fax: 512-637-1583
{COR NTC CJA Appointment]
Levatino Pace, L.L.P.
Bui|ding K, Suite 12
1101 S. Capita| of Texas Highway
Austin, TX 78746
Robert A|an Weber, Esq.
Direct: 302-651-3144
Emai|: robert.weber@$kadden.com
Fax: 302-574-3144
[COR NTC Pro Bono]
Skadden, Arps, S|ate, |V|eagher& F|oml L.L.P.
900 N. King Street
1 Rodney Square
Wi|mington, DE 19801-0000
Stephen |Vl. Hoffman, Assistant Attomey Genera|
Direct: 512-936-1400
Emai|: stephen.hoffman@texasattomeygenera|.gov
Fax: 512-320-8132
[COR LD NTC Government]
O|'“fice of the Attomey Genera|
for the State of Texas
P.O. Box 12548
Capitol Station
Austin, TX 78711-2548
|Vlatthew Dennis Ottoway, Assistant Attomey Genera|
Direct: 512-936-1400
Emai|: matthew.ottaway@texasattomeygenera|.gov
Fax: 512-320-8132
[COR LD NTC Government]
Of“fice of the Attomey Genera|
Postconviction Litigation Division
300 W. 15th Street - Sth F|oor
Wi||iam P. Clements Bui|ding
Austin, TX 78701-0000
James Patrick Su!|ivan
Emai|: jsu||ivan@ks!aw.com
[COR LD NTC Govemment]
Office of the Attomey Genera|
Office of the So|icitor Genera|
P.O. Box 12548 (NIC 059)
Austin, TX 78711-2548
https:llecf.ca§.uscourts.gov/cmecflserv|eUTransportRoom
219
1130/201 5 13-70009 Docket``
7 RODNEY REEDl
Petitioner - Appe|lant
v.
W|LL|A|V| STEPHENS, D|RECTOR, TEXAS DEPARTMENT OF CR|N||NAL JUSTICE, CORRECT|ONAL |NST|TUT|ONS D|V|SION,
Respondent - Appe||ee
htlps:lfecf.ca§.uscourts.govlcmecflservlet!TransportRoom
31'9
1/301'2015
13-70009 DOcl