Texas Federal Court Stays Execution of Stephen Barbee on Religious Freedom Issue, Defense Seeks Review of False Forensic Testimony

A federal court in Texas has stayed the October 12, 2021 execution of Texas death-row prisoner Stephen Barbee on his claims that the state’s refusal to allow his spiritual advisor to administer last rites, touch him, or pray out loud in the execution chamber violates his constitutional and federal statutory rights to free exercise of religion. Judge Kenneth M. Hoyt of the U.S. District Court for the Southern District of Texas issued the stay on October 7, 2021, citing the U.S. Supreme Court’s decision to hear argument on the same issue in the case of Texas death-row prisoner John Henry Ramirez.

Texas prosecutors did not appeal the district court’s stay order.

“I am very grateful for the stay of execution in Mr. Barbee’s case as it will allow the court time to evaluate these important religious rights issues,” Richard Ellis, Barbee’s attorney, told the Associated Press.

In addition to his religious freedom issues, Barbee has argued that his conviction should be overturned because his lawyers unconstitutionally conceded his guilt at trial against his wishes. He also is seeking a new trial because, he says, newly discovered evidence shows that his conviction rested on false forensic testimony by a coroner who was subsequently suspended from performing autopsy examinations on homicide cases because of a pattern of errors and negligent practices. The U.S. Supreme Court on October 4, 2021 declined to review Barbee’s challenge to his attorneys’ conduct. The Texas Court of Criminal Appeals on October 8, 2021 denied his challenge to the alleged false forensic testimony.

Prior to receiving a stay of execution, Barbee submitted a clemency petition asking Governor Greg Abbott to commute his death sentence based on these issues. The Texas Board of Pardons and Paroles “discontinued” the clemency application on October 8 in light of the federal court stay.

The Religious Exercise Issue in Texas Executions

On September 7, 2021, the Texas Department of Criminal Justice informed Barbee’s designated spiritual advisor, Barry Brown, that Brown would not be able to verbally perform religious rites or touch Barbee in the execution chamber during his execution. The next day, September 8, 2021, the U.S. Supreme Court stayed John Ramirez’s execution to review his claim that the state’s refusal to allow his pastor to “lay hands” on him or pray audibly during the execution violated the federal Religious Land Use and Institutionalized Persons Act and his First Amendment right to the free exercise of religion. The Court on September 9 set an expedited briefing schedule in Ramirez’s case and scheduled oral argument in the case for November 1.

Barbee formally filed a grievance of TDCJ’s limitations on his spiritual advisor on September 15, and Ellis sent a letter via email to the Texas Department of Criminal Justice (TDCJ) Office of General Counsel to determine TDCJ’s position on Barbee’s “request that his spiritual advisor be permitted to audibly pray and physically touch Mr. Barbee to administer spiritual comfort and a blessing upon him at the time of his death.” TDCJ denied Barbee’s grievance on the 16th, writing that “[a]t this time, the spiritual advisor is not allowed to touch the inmate or speak out loud once inside the execution chamber.” By email that day, the Office of General Counsel refused to answer Ellis’ question, stating that Barbee would have to seek a response through the grievance process.

Ellis filed a civil rights complaint on behalf of Barbee in federal district court on September 19, seeking to allow Barbee’s spiritual advisor “to be physically present in the chamber, to audibly pray and to physically touch Mr. Barbee in order to confer ministrations and a spiritual blessing upon him at the time of his death.” Counsel also sought a stay of execution, alleging that the limitations Texas placed on Barbee’s spiritual advisor “violate the First Amendment’s Free Exercise Clause and substantially burden the exercise of his religion in violation of the Religious Land Use and Institutionalized Persons Act.”

As they did in Ramirez’s case, Texas prosecutors opposed Barbee’s request, arguing that the religious practices he wants his spiritual advisor to perform would create a security risk. Judge Hoyt granted Barbee’s stay application, writing, “[s]taying Barbee’s execution will allow time to explore and resolve serious factual issues concerning the balance between his religious rights and the prison’s valid concerns for security.”

A diverse group of individuals and organizations have filed amicus curiae briefs in the U.S. Supreme Court in support of Ramirez. The eleven friend-of-the-court briefs represent a variety of religious rights groups, including the Becket Fund for Religious Liberty, Protect the First Foundation, and Alliance Defending Freedom, as well as the United States Conference of Catholic Bishops and Texas Catholic Conference of Bishops, religious liberty scholars, spiritual advisors who have ministered to prisoners during prior executions, and former prison officials.

The Catholic bishops argue that Texas’ policies violate not only the prisoners’ religious rights but those of their ministers as well. “By denying chaplains the ability to personally and effectively minister to their death-row church members in their final moments—including through the laying on of hands and the vocalization of prayers in the execution chamber—they impermissibly infringe upon the First Amendment freedoms of religious organizations and their ministers.”

The brief submitted by spiritual advisors and former prison officials notes that the religious practices requested by Ramirez have safely been performed in numerous previous executions, including many in Texas before TDCJ changed its execution policies. “In most of [the state’s 572] executions, TDCJ permitted spiritual advisors to lay hands on the condemned during the execution,” the officials explained. “Likewise, up until recently, it was common for TDCJ to permit the spiritual advisor to audibly pray at the time of death. Never did these practices cause a disruption or security threat during the execution.”

Two other Texas prisoners with pending execution dates—Kosoul Chanthakoummane (November 10) and Ramiro Gonzales (November 17)—have also raised similar religious freedom claims.

Allegations of False Forensic Testimony

Barbee was convicted and sentenced to death on charges that he had murdered his ex-girlfriend, Lisa Underwood, and her son. After police threatened him with the death penalty, Barbee initially said that he caused the deaths but that they were accidental and unpremeditated. He immediately recanted his confession, which he said was coerced, and continuously thereafter has maintained his innocence. His pleadings in the U.S. Supreme Court and in the Texas Court of Criminal Appeals note that “[n]o DNA or forensic evidence from the crime scene, the victim’s car, or the victim’s clothing connect[ ] Mr. Barbee to the murders.”

Barbee’s trial took only 2½ days, with the defense case at the guilt phase encompassing barely three pages of the trial transcript. Although Barbee repeatedly told his lawyers he wanted to maintain his innocence, counsel told the jury in his closing argument that Barbee had held down his ex-girlfriend by the throat, accidentally causing her to die. Dr. Marc Krouse, the coroner who testified for the prosecution, told the jury that Underwood had sustained soft-tissue injuries caused by 5 to 7 minutes of between 100 and 400 pounds of force.

In March and April 2021, prosecutors for the first time disclosed to the defense evidence that Barbee’s lawyers say show that Dr. Krouse had been fired as a result of errors, omissions, and negligence “in virtually all of his recent autopsies.” In an October 1, 2021 habeas corpus filing in the TCCA, Barbee’s counsel notes that an audit of Dr. Krouse’s autopsies conducted by the Tarrant County Medical Examiner’s Office found that Krouse “had made 59 mistakes during the autopsies of 40 murder victims over a 10-month period in 2019 and 2020.” Barbee’s counsel further alleges that their ongoing investigation “has shown that Dr. Krouse’s incompetence goes back to well prior to Mr. Barbee’s trial,” citing evidence that the Lubbock County District Attorney’s office accused Krouse in 2000 of conduct that “was ‘grossly negligent’ or untruthful.” Prosecutors also failed to disclose to the defense at trial the fact that Krouse had been the subject of a criminal complaint for domestic violence.

Barbee’s TCCA petition presented an evaluation by an independent pathologist who, the defense says, “identified many errors, flaws and omissions in Dr. Krouse’s conclusions as to Lisa Underwood’s death and his trial testimony based on those conclusions.” Dr. William Anderson, a former associate and chief medical examiner in North Carolina, California, Georgia, and Florida, disputed Krouse’s conclusions as to the time of death, mechanism of death, and how long it took for Underwood to die. Dr. Anderson found “minimal evidence of blunt force injury to the neck …, strongly mitigating against [the state’s] manual strangulation scenario.” He further found that “[n]o internal photos were taken and no microscopic analysis of the tissues, essentially meaning that there is no documented evidence that connects that injury to [Underwood’s] subsequent death.”

Barbee’s sought an order returning the case to the trial court for an evidentiary hearing on the prosecution’s “presentation of false evidence and nondisclosure of material impeachment evidence of a crucial State’s witness.” It also asked the TCCA to stay Barbee’s execution so counsel can further investigate Krouse’s “incompetence and botched autopsies.” The TCCA denied the petition on October 8.