New Execution Date Set for Anthony Bartee, DNA Testing Still Not Completed

Take Action Now!  Request a Reprieve for Anthony Bartee

On May 2, 2012, Anthony Bartee may be put to death by the State of Texas, even though DNA testing ordered recently by State District Judge Mary Román has not been completed or analyzed.

Bartee was originally scheduled to be executed on February 28, 2012, despite the fact that the Bexar County Criminal Investigation Laboratory has not tested pieces of DNA evidence that were collected from the crime scene. Even after being ordered to test this evidence by Judge Román in 2007, neither the Bexar County crime lab nor the DPS lab in Austin performed the ordered tests on all available evidence.  Bartee was convicted of the 1996 murder of his friend David Cook in San Antonio.  He has consistently maintained that although he was present at the house, he did not kill Cook.

Bartee received a reprieve on February 23, 2012 when Judge Román withdrew the execution warrant so that additional DNA testing could be conducted on the strands of hair found in the hands of the victim.  She also ordered the forensic lab to provide a detailed and comprehensive report to the court with an analysis of the results.  According to Bartee’s attorneys, this testing still has not been performed.  Yet, inexplicably, Judge Román has set another execution date – May 2, 2012.

 

Bartee’s attorneys assert that chapter 64 of the Texas Code of Criminal Procedure obligates the court to hold a hearing after the testing has been conducted and after examining the results to determine whether this evidence would have made a difference in the outcome of the trial, had it been available to the jury.  At this point, there is less than three weeks for the testing to be completed and fully considered by the courts before Bartee is scheduled to be put to death.

Take action now!

 

• Write or fax the Texas Board of Pardons and Paroles and Governor Rick Perry to urge clemency or a 120-day reprieve for Anthony Bartee (see below for addresses and talking points).
• Write a letter to the editor of your local newspaper, expressing concerns about the death penalty’s irreversible risk of error and calling for its repeal.
• Post information about this case on Facebook and Twitter.

 

Additional Background and Talking Points for Letters to the Texas Board of Pardons and Paroles and Governor Rick Perry

Untested DNA Evidence

While performing an autopsy on the victim, David Cook, the medical examiner found hairs in both of his hands. On June 18, 2007, Trial Judge Mary Román ordered that these hairs be tested by the Department of Public Safety’s (DPS) lab in Austin. According to a report later issued by the DPS crime lab, hairs found in Cook’s left hand were tested and not found to belong to Bartee. This same report confirmed that no DNA was extracted during these proceedings from the hairs found in the right hand of David Cook.

 

Even after Judge Román ordered the additional testing of all forensic DNA evidence in the Bartee case on July 21, 2010, the hairs taken from the right hand of the murder victim remain frozen at the DPS crime lab in Austin. The official response to the judge’s request from Bexar County Crime Lab claimed that “no remaining physical evidence [was] available for additional forensic DNA testing,” even though the report from the DPS confirms this is not the case.

 

At a hearing in November of 2010, Judge Román used an incomplete report that only contained information from the DNA test performed on the evidence collected from the left hand of the victim. This report did not contain any information on the still frozen and untested hairs found in the victim’s right hand. From this incomplete report, Judge Román concluded that though the hair tested did not belong to Bartee, it could have belonged to David Cook and, as such, did not exonerate Bartee.

 

To date, 17 inmates on death row in the United States have been exonerated by use of DNA testing. Shouldn’t every prisoner get this chance when DNA evidence is available? Shouldn’t Texas insist on the highest standards of evidence proving guilt, especially in cases where the punishment is irreversible?

 

A Serious Conflict of Interest Involving a Trial Attorney

A severe conflict of interest took place in this case during the trial. This conflict involved Michael Sawyer, the defense attorney sitting second chair for Bartee, and his relationship with David Cook, the victim.  This relationship was revealed on April 13, 1998, on the morning the actual trial was to begin, when Sawyer “realized” that he knew the victim, David Cook, and the victim’s entire family.

 

Although Sawyer claims that he was not aware of his familiarity with the entire Cook family throughout the trial’s previous month-long seating of the jury, a clear conflict of interest existed and potentially impacted the jury selection process.

 

The judge allowed Sawyer to withdraw from the case, but she denied the motion for a mistrial made by Bartee’s other attorney, Vincent Callahan. When claims that the trial was tainted by Sawyer’s conflict of interest were made in Bartee’s state habeas petition, the judge denied relief by citing previous case law showing that Texas courts required defendants to prove that but for the conflict of interest, the results of the trial would have been different.

 

On September 12, 2007, however, the Texas Court of Criminal Appeals held that this was not the proper standard by which to analyze claims involving conflicts of interest. Due to this change in the standard applied to claims involving conflicts of interest in Texas, Anthony Bartee should now be given the chance to have his claim heard under the proper standard.

 

A Model Prisoner and Commitment to Service

Additional factors should be taken into consideration in the case of Anthony Bartee, namely, his behavior as a model prisoner while on death row, along with his family’s commitment to serving our country through various branches of the Armed Services.  As his prison disciplinary records reveal, if his sentence were commuted to life in prison, he would not be a danger to any prisoner or guard.

 

Since he began his time on death row on September 9, 1998, Bartee has been at level one, the best disciplinary level possible. He has only been cited for two disciplinary infractions, neither of which were violent, throughout his entire 13 years on death row.

Bartee was raised in a family devoted to serving our great nation. Bartee’s father served our country in the Air Force for 26 years and his grandfather served in the Army in Germany during World War II. Bartee himself received an honorable discharge from the Army on July 12, 1976.

Bartee has also long sought to teach others to learn from his mistakes. During time spent in prison for an earlier conviction, Bartee was chosen as one of two “model prisoners” to speak to a group of troubled students from the local town. These students were greatly influenced by his comments, and it has been reported that many of them ceased participating in gang activity after their visit with Bartee.

Please call on the Board of Pardons and Paroles to commute the sentence of Anthony Bartee or, at a minimum, grant a 120-day reprieve so that his claim regarding the conflict of interest can be pursued under the proper standard and DNA testing can be conducted and fully analyzed.

Contact information for Governor Perry and the Board of Pardons and Paroles:

Office of the Governor
P.O. Box 12428
Austin, Texas 78711-2428
Fax: 512-463-1849
Main number: 512-463-2000

Salutation: Dear Governor Perry
Clemency Section
Texas Board of Pardons and Paroles
8610 Shoal Creek Blvd.
Austin, TX  78757-6814
Fax (512) 467-0945
bpp-pio@tdcj.state.tx.us
Salutation: Dear Board Members