motion for deposition of curtis davis_061016 (1)

7/25/2019 Motion for Deposition of Curtis Davis_061016 (1)

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IN THE

COURT OF CRIMINAL APPEALS OF TEXAS

AND

THE 21ST

JUDICIAL DISTRICT COURT

BASTROP COUNTY, TEXAS

EX PARTE Writ Cause No. 50, 961

RODNEY REED, Trial Cause No. 8701

Applicant.

_________________________________________________________

MOTION FOR DEPOSITION OF CURTIS DAVIS_________________________________________________________

Applicant Rodney Reed files this Motion to take the deposition of Curtis

Davis in order to fully develop the facts alleged in his Supplemental Application

filed with this Court on June 8, 2016. Because Mr. Reeds counsel was not

provided with a copy of the CNN interview, and was only permitted to review

limited portions of the interview, a Deposition is necessary to more fully develop

the factual record regarding Officer Daviss role in the investigation and his

account of his conversations with Jimmy Fennell on April 23, 1996.

A. Mr. Reed has been provided with only limited access to Officer Daviss

interview.

As discussed in the Supplemental Application, Officer Davis sat for an

interview with CNN in the spring of 2016 in which he discussed the April 23, 1996

conversation in which Mr. Fennell told him what happened on the night of April


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22, 2016. A CNN producer later permitted undersigned counsel Bryce Benjet and

his legal assistant to view the portion of the videotaped interview in which Officer

Davis recounted his conversation with Mr. Fennell. The producer also allowed a

brief review of the transcript of the entire interview. During this brief review, the

producer held the transcript and paged through it in the presence of Mr. Benjet and

his legal assistant. As the producer paged through the transcript, he described the

subject matter of each page. Mr. Benjet was unable to read the transcript during

this brief review, but could see enough over the producers shoulder to verify that

the general description provided was accurate. The only portion of the transcript

that Mr. Benjet was permitted to read in total were the pages that corresponded

with video shown to him detailing Officer Daviss conversation with Mr. Fennell

on April 23, 2016.

B. A deposition is warranted so this Court may consider a more complete

record regarding Fennells statements to Officer Davis.

Because CNN has restricted access to its interview with Officer Davis, Mr.

Reeds Supplemental Application relied only on the verification of counsel to

prove what Mr. Fennell said during his interview. While this Court may rely on

the allegations made in the Supplemental Application in determining whether Mr.

Reed should be granted a hearing on his claims, the record is far from ideal. For


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example, it does not appear1that Officer Davis was asked whether he shared Mr.

Fennells account of his whereabouts on April 22, 1996 to other officers

investigating Stacey Stitess murder or if he was aware that Fennell later gave a

different story to police and in his testimony. Although these questions and others

would certainly be appropriate in the context of a hearing on Mr. Reeds claims,

this Courts weighing of whether the pending habeas applications meet the

procedural requirements for consideration under section 5(a)(1) and 5(a)(2) of

Article 11.071 would be greatly aided with the more fulsome record that can be

established through a deposition.

Nor would a deposition impose a significant burden on Officer Davis.

Officer Davis voluntarily sat for a lengthy interview with CNN, knowing that his

statements would be part of a nationally televised news program. Having

unilaterally offered his account to the news media, Officer Davis cannot credibly

complain that a deposition covering essentially the same subject matter would

impose a burden when weighed against the benefit to this Court and these

proceedings by developing a complete record on which to decide the merits of Mr.

Reeds innocence and other constitutional claims.

1The CNN producer did not mention any such questioning when summarizing those portions of the interview which

were not provided to counsel.


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This Court has both the inherent and statutory authority to order depositions

at this stage of the proceedings to enable habeas applicants to fully develop facts

supporting claims for relief under Article 11.071 and 11.073 of the Code of

Criminal Procedure. As discussed in Mr. Reeds pending Motion for Discovery or

in the Alternative Petition for Depositions Under Rule of Civil Procedure 202, trial

courts routinely grant limited discovery in habeas proceedings for the purpose of

developing claims prior to the granting of a hearing. See October 19, 2015,

Supplemental Clerks Record at 5-41. Moreover, the Court must have the

authority to grant limited pre-hearing discovery to ensure that the other rights to

post-conviction review afforded through Articles 11.071 and 11.073 of the Code of

Criminal Procedure are both meaningful and not arbitrarily denied in violation of

Due Process and the Eighth Amendment. See id.;Harris v. Nelson, 394 U.S. 286

(1969);Ford v. Wainwright, 477 U.S. 399, 414 (1986); Skinner v. Switzer, 562

U.S. 521 (recognizing potential procedural due process claim for arbitrary denial of

access to post-conviction DNA remedy). Absent the opportunity to ask Officer

Davis about his conversations with Mr. Fennell at a hearing, a deposition is

required so that Mr. Reed is not arbitrarily deprived of his right to post-conviction

review of this substantial claims in violation of Texas law and the aforementioned

rights under the United States Constitution.


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Respectfully submitted,

/s/ Bryce Benjet_____________BRYCE BENJET

State Bar No. 24006829

THEINNOCENCEPROJECT

40 Worth St. Suite 701

New York, New York 10013(212) 364-5340

(212) 364-5341 (fax)

ANDREW F. MACRAEState Bar No. 00784510

LEVATINO|PACELLP

1101 S. Capital of Texas Highway

Building K, Suite 125Austin, Texas 78746

(512) 637-8563(512) 637-1583 (fax)

Attorneys for Applicant Rodney Reed


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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing

Motion for Deposition of Curtis Davis has been served on the attorneys for the

State both through the e-filing electronic service system as well as via FederalExpress, on this 10th day of June 2016, addressed to:

Matthew Ottoway

Assistant Attorney General

300 West 15th St.

Austin, Texas 78701

Bryan Goertz

Bastrop District Attorney

804 Pecan St.

Bastrop, Texas 78602

/s/ Bryce Benjet___________________Bryce Benjet


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