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For the third time in four years, Texas hopes to execute Stephen Barbee Wednesday night. But first it will have to wait for the courts to rule again on the state’s handling of the religious rights of prisoners in the death chamber.
Federal courts have been back and forth this month over Texas’ execution policy and the findings of several US Supreme Court rulings that largely require the state to allow prisoners’ religious advisers to audibly pray and touch them in their final moments . On Tuesday, a district judge essentially halted Barbee’s pending execution by declaring that the Texas prison system could only kill the death row prisoner after a new execution policy was created and passed that clearly spelled out his final religious rights.
The Texas Department of Justice told the court that it would appeal the verdict moments later and leave the execution pending a higher court decision.
Barbee, 55, was convicted in 2005 of murdering his pregnant ex-girlfriend Lisa Underwood and their 7-year-old son Jayden in Tarrant County. During police questioning, Barbee confessed to the murders and said he feared Underwood would tell his ex-wife that he was likely the father of their unborn child and that he would have to pay child support. He soon recanted the confession, which his lawyer said was “the result of fear and coercion,” and has maintained his innocence ever since.
Instead, Barbee said his colleague Ron Dodd, also a suspect in the murders, committed the murders alone and helped Dodd hide the bodies. After Barbee was sentenced to death, Dodd pleaded guilty to tampering with physical evidence and was sentenced to 10 years in prison. He admitted to helping Barbee dispose of the victims’ bodies.
Barbee’s first execution date, set for 2019, was stopped by the Texas Court of Criminal Appeals to further investigate whether it was a violation of Barbee’s Sixth Amendment right to counsel when his trial attorney told the jury he was against owe his will. In a case in Louisiana, the US Supreme Court recently ruled that defendants have the right to insist that their attorneys not admit guilt, even if the attorneys believe that such an admission is the best way to avoid the death penalty .
Finally, early last year, the Texas court ruled that Barbee was not eligible for a new trial because he failed to make it clear to his attorneys that he wanted to maintain his innocence. The judges said that while Barbee repeatedly told his lawyers that he was innocent and would not plead guilty, and while he was shocked by the admission of guilt at his trial, he did not tell them that his defense strategy included a claim of innocence, he said no wrong was done under precedent in court.
Following the verdict, Tarrant County officials requested a new execution date, which was set for October 2021. At the time, it was canceled by US District Judge Kenneth Hoyt of Houston while the US Supreme Court was considering the case of another Texas man in a series of decisions about the Texas prison system’s handling of the religious rights of prisoners in the execution chamber. Barbee had requested that his spiritual advisor pray for him and lay hands on him as he died, a practice recently outlawed by prison officials.
In March of this year, the Supreme Court ruled that Texas’ execution policy likely violates a prisoner’s religious rights, and prison officials said they would make adjustments to execute people consistent with the court’s intent.
Barbee’s next execution date is set for Wednesday. But his attorneys still argue that there is an unacceptable lack of clarity in the Texas Department of Justice’s execution policy regarding religious practices. Although prison officials acknowledged they were following orders from the country’s Supreme Court, the practice has not been included in the state’s execution policy.
Hoyt agreed, saying earlier this month that Texas could only go ahead with Barbee’s execution if it updated its execution policy in a way that was clear and consistent with US Supreme Court rulings.
“TDCJ now operates under an unwritten policy whereby prison officials may unilaterally decide whether to grant an inmate’s requested placement … placement may be withdrawn at the last moment at the will or whim of any prison official,” Hoyt wrote in his decision.
Prison officials have sworn in court that Barbee will be allowed his counselor to touch him and pray as he dies. Federal appellate judges said Friday’s Hoyt verdict was too broad and went beyond Barbee’s needs, and sent it back to Hoyt for revision. On Tuesday, Hoyt issued a new ruling that mirrored his previous one but applied it only to Barbee.
“Texas [TDCJ] cannot proceed with the execution of Stephen Barbee until it has issued a clear policy, approved by its governing political body, that (1) protects Stephen Barbee’s religious rights in the execution chamber… and (2) any exceptions to these policy, and describes exactly what those exceptions are or could be,” Hoyt said in his restraining order.
Texas is appealing this ruling to the US 5th Circuit Court of Appeals. The US Supreme Court also considered Barbee’s religious rights filings Tuesday night.
Barbee’s attorneys also sought to stop his current execution, saying his disabilities would result in extreme pain if he were strapped to a stretcher, as is typically the case in Texas executions.
For the past 15 years, Barbee has progressively lost range of motion in numerous joints, causing him to be unable to straighten his arms. His disability has long been documented in his prison medical records, which according to court documents resulted in him using a wheelchair and requiring an aid to clean himself after using the toilet. The prison handcuffs him because he cannot put his hands behind his back.
“If anyone wants my arms to be straightened in any way, I guess I’ll have to have my arms broken because even if you force them to, they won’t straighten,” Barbee said in an affidavit last year. “It’s been like this for years and it’s only getting worse.”
Last week, the jail warden said in an affidavit that Barbee was not required to stretch his arms on the stretcher. Hoyt dismissed the case Tuesday afternoon, saying the prison told Barbee months ago he would be housed.
“The leather straps that attach his arms to the armrests are adjustable … which allows his arms to remain flexed,” Huntsville unit director Kelly Strong said in her affidavit.
“While the crook of the elbow is the preferred site for IV insertion during an execution, IV lines were inserted at other sites when a suitable vein could not be used,” she said.