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Questions over testing stall Bartee execution

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The night of August 16, 1996, gunshots rang out from David Cook's East Side home shortly before neighbors heard someone take off down the street on Cook's prized red Harley. When family stopped by the house after Cook failed to show for work, they found he'd been slashed across the throat and shot twice in the back of the head. Cook's friend Anthony Bartee, out on parole after being locked up for over a decade on aggravated rape charges, was seen out on the bike the day after the slaying, according to court records. When brought in for questioning, Bartee eventually admitted to police he was at Cook's home the night of the murder, but insisted he was outside in Cook's garage working on the Harley and fled when he heard gunshots.

Though the prosecution presented little by way of physical evidence at trial, a jury convicted Bartee and ultimately sentenced him to death for the killing after hearing damning witness testimony, including one who testified Bartee planned the murder. And though scheduled to die Tuesday of this week, Bartee got a last minute reprieve when questions surfaced over DNA evidence that still hasn't been tested even though a judge ordered it over four years ago.

David Dow, Bartee's attorney and professor at the University of Houston Law Center, took the case last year to prep for Bartee's upcoming clemency petition. A month ago, when digging through court transcripts, Dow noticed a discrepancy over what prosecutors said had and had not been tested, he says.

At issue are strands of hair Cook was found clutching at the time of his death. In 2007, Bartee's then-attorney filed a successful motion for post-conviction DNA testing, and State District Judge Mary Román ordered hair found in both of Bartee's hands tested. 

“We learned in the course of our investigation that contrary to what the [District Attorney's office] had said earlier, namely that there were hairs from only a single hand that were available, we located hairs from the second hand that were frozen in the lab,” Dow said. Hair that has already been tested doesn't match Bartee but may belong to Cook, he added.

Dow filed a series of appeals last week saying prosecutors incorrectly told Román all the evidence that could be tested has been tested. On Thursday, she agreed to withdraw the execution date.

Rico Valdez, an assistant prosecutor with the Bexar County DA's office who handles capital appeal cases argued the rest of the hair was likely scientifically insufficient for meaningful testing. Dow* disagreed, saying there must have been miscommunication between the DA's office and the Department of Public Safety crime lab in Austin, where the evidence sits frozen.

“We've got plenty of evidence, but Judge Román, with an abundance of caution, is going to allow the additional testing,” Valdez said. “ And whether I agree with it or not, it's my job to make sure it's done and that we can move forward.”

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