Execution Looms for One Texas Prisoner as Another Receives Stay from Texas Appeals Court

Texas is prepar­ing to exe­cute Robert Sparks (pic­tured, left), on September 25, 2019, as a sec­ond death-row pris­on­er, Stephen Barbee (pic­tured, below), received a stay from the Texas Court of Criminal Appeals.

Sparks’ case is the lat­est in which Texas pros­e­cu­tors sought and obtained an exe­cu­tion war­rant while appeals in the case were pend­ing before state or fed­er­al courts. On May 6, 2019, Sparks court-appoint­ed fed­er­al habeas coun­sel filed a peti­tion for writ of cer­tio­rari ask­ing the U.S. Supreme Court to review his case. In June, the Texas Attorney General’s office filed a motion in the U.S. Supreme Court seek­ing an exten­sion of time to respond to Sparks’ peti­tion, and then asked the Dallas County District Attorney to request that the state tri­al court set an exe­cu­tion date. On June 25, the Dallas County court issued a death war­rant. At that time, Sparks’ lawyer, Seth Kretzer — who had con­sent­ed to the attor­ney general’s exten­sion motion — object­ed to the exe­cu­tion date as an attempt ​“to force the Supreme Court’s hand.” On July 10, the attor­ney general’s office filed its brief in oppo­si­tion to Sparks’ peti­tion. One week lat­er, Sparks asked the Supreme Court for a stay of exe­cu­tion pend­ing its adju­di­ca­tion of his case. Two months lat­er, on September 18, the attor­ney gen­er­al filed a response in oppo­si­tion to the stay motion, telling the Supreme Court: ​“This Court should not fur­ther delay justice.”

Under Texas law, a jury must find that a cap­i­tal defen­dant pos­es a con­tin­u­ing threat to soci­ety before it may sen­tence a defen­dant to death. Sparks’ appeal argues that his death sen­tence was uncon­sti­tu­tion­al­ly taint­ed by ​“false and mis­lead­ing tes­ti­mo­ny” by a pros­e­cu­tion expert A.P. Merillat, whose inac­cu­rate tes­ti­mo­ny about Texas prison con­di­tions and the alleged threat of future dan­ger­ous­ness posed by cap­i­tal defen­dants has already led courts to reverse two oth­er Texas death sen­tences. Merillat false­ly tes­ti­fied in Sparks’ case that Sparks would be incar­cer­at­ed in a medi­um secu­ri­ty prison if he was not sen­tenced to death, where he would have oppor­tu­ni­ties to com­mit fur­ther vio­lence. Sparks’ lawyers argue that this false tes­ti­mo­ny affect­ed the jury’s ver­dict, point­ing to a request the jury made of the court dur­ing its penal­ty delib­er­a­tions ask­ing to review Merillat’s testimony. 

Sparks also argues that his death sen­tence was uncon­sti­tu­tion­al­ly influ­enced by mis­con­duct by a Dallas County court employ­ee. He says that court bailiff Bobby Moorehead poi­soned the jury’s ver­dict by wear­ing a tie ​“embla­zoned with a large white hypo­der­mic nee­dle show­ing his sup­port for the death penal­ty” while the jury was delib­er­at­ing on Sparks’ punishment. 

A sec­ond fed­er­al appeal seeks to halt Sparks’ exe­cu­tion based on evi­dence of intel­lec­tu­al dis­abil­i­ty. A Texas fed­er­al judge denied Sparks’ fund­ing to hire a neu­ropsy­chol­o­gist to eval­u­ate Sparks for intel­lec­tu­al dis­abil­i­ty based upon a bor­der­line IQ score of 75, his dif­fi­cul­ty in spe­cial edu­ca­tion class­es, and evi­dence of cog­ni­tive deficits asso­ci­at­ed with intel­lec­tu­al dis­abil­i­ty. The U.S. Supreme Court has on sev­er­al occa­sions ruled that Texas’ state and fed­er­al courts have employed an uncon­sti­tu­tion­al­ly harsh stan­dard in reject­ing death-row pris­on­ers’ intel­lec­tu­al disability claims.

Two days before Sparks’ exe­cu­tion date, the Texas Court of Criminal Appeals (CCA) grant­ed a stay of exe­cu­tion in an unre­lat­ed case. Stephen Barbee, whose exe­cu­tion was set for October 2, 2019, argued his con­vic­tion should be over­turned because his tri­al lawyer con­ced­ed his guilt against his wish­es, in vio­la­tion of his Sixth Amendment right to coun­sel. In 2018, the U.S. Supreme Court grant­ed a new tri­al to Louisiana death-row pris­on­er Robert McCoy because his lawyer admit­ted his guilt despite McCoy’s insis­tence that he was inno­cent. Barbee argued that the Court’s rul­ing in McCoy v. Louisiana should apply to his case, and the CCA stayed his exe­cu­tion to decide the issue. The court has asked for briefs with­in 30 days.