Convicted killer's death postponed
By Michelle Mondo
Updated 12:59 a.m., Thursday, May 3, 2012

A San Antonio man convicted of stabbing his friend in the back before killing him with a gunshot to the head so he could steal the man's prized Harley Davidson escaped his own execution for the second time Wednesday.

Anthony Bartee, 55, was scheduled to die by lethal injection at 6 p.m., but because of a civil rights lawsuit filed by his Houston-based attorney David Dow against the Bexar County District Attorney's Office, Bartee will not be facing the gurney again until after May 10, according to Bexar County officials.

He was convicted for the robbery and murder of David Cook, 37, in 1996.

Upon hearing the news Bartee reportedly called out “yes, yes” and then thanked his supporters, according to Jason Clark, a spokesman for the Texas Department of Criminal Justice.

“I'd like to thank everyone for supporting me through these trials and tribulations,” Bartee said in a statement to Clark. “Put peace in your heart. God is working through all of us. God bless us all.”

In the legal wrangling that is typical of capital cases, Dow filed a flurry of appeals Wednesday, all of which were denied, including by the U.S. Supreme Court.

The appeals dealt with what Dow said was DNA testing that had not been completed. It was the same issue that won Bartee his first stay just days before his original execution date of Feb. 28.

A judge granted a reprieve in that instance to allow for additional mitochondrial DNA testing of hairs found on Cook's hand. Last week, a district court judge ruled that all testing previously ordered had been completed, that the court's order was therefore fulfilled and the results from the tests, that the hairs matched Cook's DNA profile, would not have altered the trial or the outcome. Because of that, Bartee's newly set date of Wednesday at 6 p.m. was not withdrawn.

Wednesday's last-minute lawsuit filed by Dow argues that his client's civil rights were violated when prosecutors opted not to test glasses and cigarette butts gathered as evidence from Cook's house.

With fewer than four hours until Bartee would be put to death, Chief U.S. District Judge Fred Biery, based in San Antonio, granted a stay in response to the civil rights suit brought by Dow against District Attorney Susan Reed. The DA's Office appealed that ruling to the 5th U.S. Circuit Court of Appeals, which decided Wednesday night that additional briefs needed to be filed by both sides.

First Assistant District Attorney Cliff Herberg said the trial courts as well as higher courts already have affirmed the conviction, and the most recent decision concerning the newest DNA results.

“This is a meritless defense tactic that is designed to do nothing but delay the execution,” Herberg said. “They've had 15 years to seek to test this evidence, and the fact is it wouldn't prove anything one way or another. This is not a DNA case. It's not an issue.”

DNA wasn't what convicted Bartee and it won't exonerate him, prosecutors have argued in response to the multiple appeals. They say Bartee changed his story, was seen on Cook's motorcycle, lied to friends about how he got the bike, and before the killing told people he wanted to “ace a white dude named David.”

Rico Valdez, an assistant district attorney in the Appeals Division, said the court asked for their briefs by May 8 and the response from Dow by May 10. Even after the 5th Circuit ruling, however, that opinion can also be appealed to the Supreme Court.

For now, with no action by the court, Biery's order for the stay of execution remains in place and the execution warrant expires at midnight. A new date will have to be set, Valdez said.

The news angered Cook's family, several of whom traveled to Huntsville, including his father Marvin Cook, two sisters and a brother-in-law.

“I think it's unfair,” said sibling Linda Cook, 46, who stayed in San Antonio with her daughter. “Our family is going to have to endure even more of this but in the end it won't matter. It's just a delay not the end. We will see justice for my brother's murder.”

mmondo@express-news.net

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