Death Watch: As Execution Pace Quickens, a 30-Day Stay for Barbee
Meanwhile, Randy Halprin loses 5CA appeal and Rodney Reed supporters fight for justice
Stephen Barbee has at least 30 more days to live after the Texas Court of Criminal Appeals on Monday stayed his execution, which had been scheduled for Oct. 2. The court wants to determine if Barbee's Sixth Amendment rights were violated at his 2005 Tarrant County trial, when his lawyer admitted to the jury that his client beat and suffocated his pregnant girlfriend and her 7-year-old son – but without the "conscious objective or desire" to kill them. The admission was likely a strategy to spare Barbee the death penalty; he said it came as a complete surprise.
Barbee insisted in two subsequent appeals that he told his lawyer he wanted a defense emphasizing innocence and would never have consented to an admission of guilt. Both appeals were rejected. But in May 2018, a ruling from the U.S. Supreme Court breathed new life into his argument. In McCoy v. Louisiana, the court explicitly stated that it is the defendant – not the lawyer – who has the right to decide the defense. Barbee's appellate attorney, Richard Ellis, filed a last-minute petition in August saying the court's new ruling made the admission of guilt a clear violation of Barbee's right to a fair trial.
In its ruling, the CCA ordered attorneys from both sides to interpret whether the standard in McCoy is a new law that must be applied retroactively. If it is found to be so, the court asks if it should apply to Barbee's case – given that he has confessed and recanted multiple times – and if there must be evidence that Barbee objected to his lawyer's admission during the trial or only afterward. The attorneys have 30 days to respond.
The 5th U.S. Circuit Court of Appeals refused on Monday to consider damning allegations of prejudice in the case of Randy Halprin, scheduled for execution on October 10. Halprin, who is Jewish, filed an appeal with the court on September 6 alleging that Vickers Cunningham, the judge in his 2003 trial, referred to him as a "goddamn kike" and "fuckin' Jew" at the trial's conclusion. Halprin's lawyers say Cunningham's bias tainted the trial and denied Halprin due process. Citing voluminous Supreme Court precedent – and much proof of Cunningham's bigotry – they requested a stay of execution and new trial. But the 5CA judges said technical rules bar Halprin from bringing the appeal. They did, however, offer this helpful footnote: "Cunningham's racism and bigotry are horrible and completely inappropriate for a judge." Halprin was a member of the notorious Texas Seven, a group of inmates who broke out of jail in 2000 and killed Irving police officer Aubrey Hawkins. When caught, all received death sentences. Halprin and Patrick Murphy are the last still alive; Murphy is scheduled to die in November.
On Tuesday, attorneys for Rodney Reed – scheduled for execution on Nov. 20 for the murder of Stacey Stites – asked the U.S. Supreme Court to review new evidence in his case. Reed's 1998 conviction was based solely on the fact that semen found in Stites' body matched his; no other evidence connected him to the crime. He has claimed he was having an affair with Stites at the time of her murder.
Reed's lawyers ask the court to consider two recent developments. First, new testimony has come to light that Stites' fiancé, Jimmy Fennell – the original suspect – made conflicting statements about where he was on the night of the murder. Second, the medical examiner whose assertions pointed the finger at Reed has since recanted his testimony.
Reed has a strong claim of innocence; the latest revelations are just the tip of the iceberg. His case will be dealt with at greater length in weeks to come, but suffice it to say his trial was marked by many familiar elements of structural bias: racism, mishandling of evidence, witness intimidation, and prosecutorial overreach.
Reed's family held a rally for him on Sept. 21 in Bastrop. The two-hour event featured remarks by exonerated death row inmates, former police officers, pastors, and family members. They demanded DNA testing of evidence relating to his case, something multiple courts have rejected.
His brother Rodrick Reed told the Chronicle the family will be very busy in coming weeks getting Rodney's story out. They travel to Dallas on September 27 for a rally, then will stage a running protest at the Governor's Mansion and Capitol from September 30 to October 4. They fly to Los Angeles on October 5 to appear on the Dr. Phil show (Dr. Phil recently interviewed Reed on death row). From Los Angeles they travel to Ohio to meet with Sister Helen Prejean, the activist played by Susan Sarandon in the film Dead Man Walking. They then travel to protests in New York City and Washington, D.C., before returning to Texas for the 20th Annual March to Abolish the Death Penalty on October 19.
Robert Sparks was executed on Wednesday after the Supreme Court refused to review his appeal. Sparks' lawyers had complained of false testimony in his trial and the inappropriate conduct of a bailiff. Sparks was the seventh man executed by the state this year; seven more are scheduled to die by Dec. 11.