BASTROP, Texas (KXAN) — Seizing on two letters they received in late June, attorneys for convicted death-row prisoner Rodney Reed said prosecutors withheld information at his trial from witnesses that spoke of a possible consensual relationship between the victim and Reed, according to court filings.

An Office of Attorney General prosecutor sent two “disclosure letters” to Reed’s defense attorney Andrew MacRae on Friday, June 25.

In one of the two disclosure letters, a state prosecutor said he was providing “witness interview summaries…created by the trial prosecution team in preparation for the underlying 1998 criminal prosecution. I discovered these summaries on Monday, June 21, 2021, and Tuesday, June 22, 2021. It was the first time I had seen them,” according to the prosecutor, whose name is redacted.

According to Reed’s attorneys, the letters show the state had information that at least hinted at a relationship between Reed and 19-year-old Stacey Stites. The witness statements weren’t disclosed to Reed’s defense prior to his trial, his attorneys said in court filings.

Reed’s attorney said his defense team was entitled to those summaries and the underlying information 23 years ago.

Reed was convicted of sexually assaulting and murdering Stites in Bastrop in 1996. A critical feature of the state’s case at trial was that Reed and Stites did not have a relationship at the time of the killing.

One disclosure letter notes a witness told prosecutors before Reed’s trial he “heard rumors at H-E-B that [Reed] knew Stacey Stites and would sometimes visit her at H-E-B”, and another person said he saw Reed and Stites talking at the Bastrop H-E-B and got the impression they knew each other, according to the disclosure letter.

In a second disclosure letter, prosecutors said they were providing “notice of statements made by potential witnesses to our prosecution team in preparation for the upcoming hearing.”

The witness in the second letter, a former H-E-B employee now living in Arkansas, said she had seen Stites and Reed at the grocery store on one occasion. Stites introduced Reed to the witness “as a good or close friend.” And, the witness said, “They appeared friendly, giggling, and flirting,” according to the letter. Names of the witnesses and the state’s attorney were redacted.

Reed’s defense team has pointed to Stites’ former fiancé, Jimmy Fennell, as the true killer.

On July 2, a week after receiving the disclosure letters from the state, Reed’s attorneys filed a renewed motion for discovery and sanctions.

“On Friday, June 25, 2021, Mr. Reed learned not only that the State’s decades-long claim to have maintained an open file policy was false, but so too was its equally long insistence that prosecutors had conducted an exhaustive investigation and found not even a hint, anywhere, that Ms. Stites and Mr. Reed were anything but strangers,” Reed stated in the motion.

At a July 6 Bastrop hearing, the prosecution, defense and visiting Judge. J.D. Langley discussed the letters.

“These documents, Your Honor, were not disclosed to the trial team, and we’ve confirmed that with the trial team,” MacRae told Langley, according to a court transcript obtained by KXAN. “This, Your Honor, is a gold mine for competent counsel, which is a Brady element.”

A Brady violation occurs if prosecutors suppress exculpatory evidence, which is evidence that’s favorable to or could exonerate a defendant.

Reed’s defense team could have interviewed all these potential witnesses before the trial, MacRae told the judge.

“That guts the kidnapping claim,” MacRae said in court. “It guts the sexual assault claim.”

Reed’s defense requested the prosecution’s entire file, an affidavit verifying the file is complete and to take depositions of people who had access to the prosecution’s file, according to the hearing transcript.

Prosecutors fire back

Matthew Ottoway, a prosecutor with the Office of Attorney General, said the claim Reed’s defense team was making about the letters was not part of what was in front of the court. Reed’s team would need to file a new application to raise that claim, he said, according to a transcript of the July 6 conference.

Ottoway also told Langley the content of the letters was not a Brady Violation, and prosecutors have an “open-file policy.” But, “work product” is not provided, he said. Regarding the “post-conviction work product” of the woman in Arkansas, “there is no legal obligation to turn over post-conviction work product.”

Yet, prosecutors did turn it over.

In both disclosure letters, prosecutors said they were providing the information “in an abundance of caution to provide you anything that might conceivably be considered exculpatory or mitigating.”

Ottoway also said a Brady claim cannot be based on a rumor.

“Rumors are not admissible in a court of law. It’s not as if the defense did not know that there were individuals who were saying that they saw Stacey and Rodney Reed at the H-E-B,” Ottoway said at the July 6 hearing. “They called a witness who said that they saw them at the H-E-B, so they knew to investigate her work there. Again, these are not material. They are rumors. And when those rumors were run down, the individuals denied them.”

“We have far exceeded our legal and ethical duties with respect to post-conviction investigation and provided that material,” Ottoway said in court.

Langley denied Reed’s request to open the entire prosecution file just two weeks before a scheduled hearing. He said the Court of Criminal Appeals would need to approve a time extension.

“I’m not going to blow this whole thing wide open two weeks before the scheduled hearing that the Court of Criminal Appeals has said, ‘We’re not giving you any more time,’” Langley said, according to the court transcript. “I’ve already pushed this case so far into the time limit that they have allowed that I don’t have any more time to do this. Okay? And they have said they’re the only ones that can grant more time.”

The Court of Criminal Appeals put an indefinite pause on Reed’s execution date in November of 2019 and remanded the case back to Bastrop for further fact finding.

Langley will oversee the two-week evidentiary hearing beginning July 19. Reed’s defense team and the prosecution will call witnesses and hear testimony related to three claims: Brady claim, false testimony by the state and actual innocence. The hearing could lead to a new trial, but it is not clear when the Court of Criminal Appeals decide.