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 16^th, 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.