HUNTSVILLE, Texas – A federal judge in San Antonio at least temporarily stopped the execution Wednesday of a rapist who was on parole when prosecutors say he killed a neighbor and stole the man's Harley Davidson motorcycle.
U.S. District Judge Fred Biery granted a reprieve to Anthony Bartee after his lawyers filed a civil rights lawsuit against Bexar County District Attorney Susan Reed. Bartee, 55, was scheduled for lethal injection later in the day.
The Bexar County prosecutor's office immediately appealed the court order to the 5th U.S. Circuit Court of Appeals, saying the judge's reprieve was improper and to allow the order to stand would "reward late filers and create a perpetual motion machine of last-minute attempts to stay executions."
Within 30 minutes of Biery's order, the U.S. Supreme Court, without comment, rejected Bartee's other appeals.
Bartee was in a small holding cell adjacent to the Texas death chamber while the legal maneuvers played out. His lethal injection was scheduled for 6 p.m. CDT but the death warrant remained valid until midnight.
Both the active civil suit and the appeals rejected by the Supreme Court focused on Bartee's goal to win additional DNA testing of crime scene evidence.
Bartee was convicted of murdering his 37-year-old neighbor, David Cook, in 1996 and stealing his motorcycle. Bartee was on parole after serving nearly 12 years in prison for raping two women.
Bartee's attorneys contend there's evidence that still hasn't undergone DNA testing that could exonerate him.
Bartee was granted a reprieve in February so that two strands of hair found in the victim's hand could undergo further DNA testing using more sophisticated techniques. The tests showed the hair was the victim's. Bartee's attorneys also wanted testing on drinking glasses and cigarette butts found at the crime scene.
"The testing done to date has not established the veracity of Mr. Bartee's claim that others were present at the victim's house the day of the murder," said David Dow, one of Bartee's attorneys.
Edward Marshall, an assistant Texas attorney general, contended in a court filing the evidence wasn't new and Bartee has had "multiple rounds of DNA testing ... and there remains today no evidence upon which further forensic DNA testing could be conducted."
Bartee was released from prison on the two aggravated rape convictions in May 1995.
Fifteen months later, a neighbor heard gunshots from Cook's home, then heard Cook's motorcycle start.
When Cook failed to show up for work, relatives went to his home and found he'd been stabbed in the back, had his throat cut and was shot twice in the back of his head. His 9 mm pistol, determined to be the murder weapon, was missing. So was his prized cherry red Harley Davidson motorcycle.
Investigators determined that the night before the shooting, Bartee tried to hire someone to kill a man he identified as David. The day after the killing, he was seen with the red motorcycle and told people it was his.
"According to the evidence, and the jury verdict, once he had murdered this guy, he went and showed the bike off and took a girlfriend to the coast," Joel Perez, one of Bartee's trial lawyers, said. "There was just too much damning evidence."
"David had something he wanted and he took it," Jill Mata, who prosecuted the capital murder case, recalled.
Bartee denied any knowledge of Cook's death, but when confronted about having Cook's motorcycle he told detectives he had been working on it in Cook's garage and took off after hearing gunshots because he feared for his own safety.
He blamed the slaying on two gang members he identified only as "Snake" and "Throw Down." Their existence never was confirmed.
Prosecutors believe Bartee stabbed Cook and the shooting occurred in a struggle over the gun, which Cook kept at home for protection.
Bartee's execution would be the sixth this year in Texas. At least four other Texas prisoners have lethal injections scheduled in the coming months.