BASTROP, Texas (KXAN) — Attorneys for the state are scheduled to continue their case against Rodney Reed this week. He’s the man appealing his death sentence for the 1996 killing of Stacey Stites in Bastrop County.

Reed was convicted of her abduction, rape and murder after a trial in 1998, but his defense team has asked a judge to consider what they call “new evidence” in the case.

The hearing began July 19, where his attorneys told the court they were working to prove his innocence, prove there was Brady violation in the case and argue there was false evidence presented in his original trial. Brady doctrine requires prosecutors to turn over any evidence that could be favorable to the defendant.

The defense brought a series of witnesses to the stand to testify about personal accounts of Reed and Stites — and her fiancé Jimmy Fennell. In the past, Reed and his attorneys have asserted that Fennell was responsible.

Two forensic pathology experts also testified about how they disagree with many of the conclusions made by the original medical examiner in the case that led to Reed’s conviction

Meanwhile, prosecutors said their position “hasn’t changed” in more than two decades and asked the court to consider the credibility of this new evidence and testimony. They also questioned the motive for many of these witnesses to come forward for the first time in decades.

The state’s attorneys brought several former law enforcement officers who worked on the original investigation to testify about their conclusions at the time. They are also expected to bring their own medical expert to the stand this week.

Testimony begins

As soon as the hearing began, attorneys for Reed and the state began sparring over the prosecution’s first called witness: Sergeant Seales, who works at the Office of the Texas Attorney General.

Defense counsel Andrew MacRae objected to this witness, explaining he wasn’t listed with the prosecution’s more than 100 possible witnesses for this hearing. He referred to it as looking for a “needle in a haystack” when “it turns out the needle wasn’t even in the haystack.”

State’s attorney Travis Bragg explains that Seales would be a “rebuttal” witness to one of the defense witnesses named Richard Scroggins, who took the stand last week. Still, Judge J.D. Langley allowed Seales to take the stand.

Seales told the court he was directed by the state to search the archives for The Austin Chronicle for coverage of this case — particularly for mentions of the victim’s fiancé Jimmy Fennell. He said the first photo of Fennell he found was published in 2008.

Earlier this week, Scroggins told the court he witnessed a fight in the parking lot of the Bastrop H-E-B between who he would later learn was Stites and Fennell. He said he didn’t know the couple, but heard Fennell call the woman a series of profanities and noted that Fennell shouted profanities directly at him.

Scroggins said it wasn’t until years later, around 2005, when he put together who he had seen — after reading an Austin Chronicle article that mentioned Fennell.

Memory expert testifies

The attorneys for the state called on Dr. Deborah Davis, an expert in psychology and memory science out of Nevada. She said she had studied concepts like false testimony and witness misidentification.

Her testimony comes after the state’s attorneys asked the judge to consider the credibility of the defense’s new evidence in their opening statements early last week.

Before Dr. Davis was even deemed an expert witness, Reed’s defense team objected and pressed her on whether she would be testifying to the credibility of witnesses. The defense told the judge they worried her answers would be “argument dressed up as testimony.”

Dr. Davis insisted, “I just testify about the science.”

The defense attorney also asked her about an article she wrote in 2007 that pointed out the area of research related to memories of conversations was less developed than other parts of the field.

Dr. Davis said the general principles of memory should apply across the field, but “there are just some additional details when it comes to particular principles of memory,” such as memories about conversations.

Ultimately, the judge allowed Dr. Davis to be admitted as an expert witness.

I can’t recall a case in my entire experience where I have been asked to decide on the credibility of so many witnesses whose memory is based on decades previously.

Judge J.D. Langley, presiding over Rodney Reed’s evidentiary hearing

According to Dr. Davis, external factors and people’s internal belief systems can alter or even create false memories. Factors like environment, time passed, media coverage, social media exposure and even conversations about an event can alter someone’s perception of a memory.

“We tend to update our memories so they become more consistent with what we know now, than what we knew at the time,” she said.

She walked the court through three phases when memories could be affected:

• encoding (when it’s recorded)
• retrieval (ability to access it when you need it)
• storage (the period of time between encoding and retrieval)

She also explained how “source memory confusion” can also happen, when someone learns about details or opinions of an event later on and misappropriates them as an original memory. For instance, during a criminal investigation, she said people will often confuse who mentioned a piece of evidence first — the interviewer or the suspect.

“False memories can have amazing detail … because the person believes they are real,” Dr. Davis said. “You have, mostly, the story you tell yourself about the memory.”

In a line of questioning with the state’s attorneys, Dr. Davis discussed the idea of suggestive questioning as a means of memory alteration. She gave an example of witnesses being questioned following a car accident, and how language such as “the cars smashed into each other” elicit a different reaction from “the cars hit each other.”

Running through a list of hypotheticals, the state’s attorneys asked if someone could recall conversations from over 20 years ago “word for word,” as well as remember new details. When it comes to recalling specific conversations, Dr. Davis told the state’s attorneys people are able to remember the gist of conversations, but it’s very unlikely someone would remember a conversation in its entirety, word for word.

In response to the state’s attorneys questions on media reporting and its impact on witnesses, she said the new information could infiltrate into the original memory, altering what you initially remembered.

During a cross-examination, the defense confirmed with Dr. Davis her credentials and experience working in memories, interrogations and confessions. Dr. Davis, when asked by the defense, confirmed she was paid for her service at the hearing, in an amount of $350 per hour for preparation and research and $3,500 per day on site.

In a discussion on misinformation studies, Dr. Davis said belief is an essential component in solidifying one’s memories or perceptions of an event. Eyewitness accounts can vary over time as time passes and memories become fuzzier, a lack of paying attention to the event when it initially occurred and increased media exposure and its impact on one’s original memory.

Jumping to cross-racial biases, Dr. Davis defined them as tendencies for a person of one race to more easily recognize faces from their own racial group. She said white people show the strongest levels of cross-racial bias — or the lessened ability to recognize faces of people who aren’t white — compared to non-white people. When asked, she said she didn’t recollect how quickly cross-racial recognitions fade.

Analyzing false memories

Dr. Davis defined false memories as memories completely invented by someone, as well as memories that note an event that happened but include details that aren’t incorrect. She acknowledged the initial memory might have occurred, but the inaccuracies falsify the overall memory.

Factors that increase false memories, she said, include a person’s intoxication levels, hypnosis and media analysis.

When questioned by the defense, Dr. Davis said new media analysis could alter memories or beliefs about what occurred, increasing the plausibility or assumption that the way a case or its information is presented is correct. She said a single exposure to misinformation — including, but not limited to, pieces of media content — can distort someone’s memory of an event.

“What they believe has a lot to do with their memories,” Dr. Davis said.

Suggestive questioning

Confirming Dr. Davis’s experience analyzing suggestive questioning and its impact on cases, she said subtle and blatant suggestions, interrogations, threats or other cues by anyone — law enforcement or otherwise — can lead to an altered memory recollection.

She confirmed it’s possible for law enforcement personnel to give cues or ask questions in a manner that tee up a specific, suggested response.

The defense asked if a suspect in a case belonged to law enforcement, if that could have any implications on the public’s perception or belief in either their guilt or innocence. Dr. Davis said that varied, depending on the individual’s personal opinion of law enforcement officers as a whole.

She said memory distortion applies to everyone and anyone testifying to something is subject to potential distortion of their memory, based on the information they’ve gathered and their own personal biases and beliefs.

Rigor mortis, post-death analysis

The prosecution called a second witness to the stand Monday: Dr. Suzanna Dana, a forensic pathologist since 1983 with subspecialties in anatomic, clinical and forensic pathology. Dr. Dana said she has performed autopsies for justices of the peace, counties, private families and as second family autopsies.

Dr. Dana said rigor mortis — or the stiffening of a body’s joints and muscles following death — begins immediately following death and peaks at around 12 hours post-death in temperate climates, before tapering off and ending 36-48 hours after death.

She said different climates alter the speed of rigor mortis; in warmer climates such as Texas, she said increased heat and humidity speeds up the process, peaking out prior to that 12-hour timespan.

Crime scene recordings and photos reviewed showed a blanket placed on Stacey Stites, which Dr. Dana said could have absorbed additional heat into her body and accelerated the peaked onset of rigor mortis. Crime scene footage displays the rigidity of some of her limbs and fingers post-death, as well as her body on a downslope.

Because of her location on the downslope, Dr. Dana said lividity — the pooling of blood at the lowest point of a body post-death, producing discoloration — matched the positioning of where her body was found. She said that, if the body had been moved, it would have to have been placed at the site it was found “within hours” of her death.

Based on these factors, Dr. Dana said her analysis concluded a time of death between 3 a.m. and 5 a.m. — she said she didn’t find anything inconsistent with this time of death range.

She said she disagreed with analysis provided by forensic pathologist, Dr. Andrew Baker last week. Dr. Baker said the onset of rigor mortis in her body began hours after her death. She again said rigor mortis sets in immediately following death.

In addition to forensic details found at the crime scene, Dr. Dana said forensic pathologists also note additional information in their findings, such as how a victim was dressed, if they’d let mail pile up at home or if answering machine voicemails went unchecked.

She said Stites’ clothing matched previously reported information that she was on her way to a shift at HEB. Stites was also found wearing a knee brace, which Dr. Dana said would be difficult to pull onto her body post-death, due to rigor mortis.

Other evidence cited by Dr. Dana included the presence of Stites’ truck found nearby, as well as a piece of a belt. Patterns on Stites’ neck matched those on the belt, she said.

The truck and piece of the belt were found and reported at 5:20 a.m., she said. Based on this evidence, and the matching marks on Stites’ neck with the belt, Stites was dead by the time the truck was discovered.

The prosecution will continue with Dr. Dana’s testimony when the hearing resumes at 9 a.m. Tuesday.