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Questions over testing stall Bartee execution

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Over the past decade, Texas has gradually developed one of the stronger post-conviction DNA testing statutes in the nation, with noted resistance from prosecutors and law enforcement corners that fear expanding such provisions drag out proceedings and flood the system with inmate filings. But under the system, post-conviction DNA testing has exonerated at least 45 inmates, some on death row. With pressure from prosecutors and law enforcement, lawmakers originally adopted strict standards requiring inmates to demonstrate not only that DNA-test results would prove innocence, but that it would also have prevented their prosecution, a nearly impossible standard to meet. Over the years, lawmakers axed the prosecution standard, as well as a provision saying courts could deny testing if inmates pleaded guilty or confessed.

A groundswell of recent controversial cases have marked the importance of post-conviction DNA testing. In the case of Hank Skinner, convicted and sentenced to death for the bloody murder of his girlfriend and her two sons in the Texas Panhandle, county prosecutors have fought hard to keep multiple pieces of evidence from being tested — evidence that could likely confirm or disprove Skinner's guilt. The Texas Court of Criminal Appeals stayed his execution late last year so the courts can determine whether Texas' newest post-conviction DNA statute allows for the evidence to be tested.

“The question of finding and making evidence available for testing is one that shouldn't be taken for granted,” said Maurie Levin, a longtime death penalty attorney who heads the University of Texas School of Law's Capital Punishment Clinic. “It is often the biggest hurdle, which is really a statement all by itself, really a chilling thought.”

Last October, the McLennan County DA's office moved to fight a request for DNA testing in the decades-old Lake Waco triple murder case. The only living defendant in the 1982 slayings maintains he falsely confessed to avoid the death penalty. 

In Williamson County authorities last year finally carried out post-conviction DNA testing, despite years of hard resistance from District Attorney John Bradley, that ultimately cleared Michael Morton in the beating death of his wife for which he spent nearly 25 years in prison.

There's now a closely watched inquiry into whether former Williamson County DA Ken Anderson knowingly withheld exculpatory evidence before trial and during years of appeals.

Regardless of what further testing on the hair found at the crime scene shows, it won't prove innocence, Valdez maintains. “We are not talking about a Williamson County situation,” he said.

Court records show Joey Cortez Banks testified near the end of Bartee's trial, and presented some of the most incriminating testimony. Banks claimed Bartee asked him to help rob and kill “some white dude” named David before the murder. The defense in previous appeals has contended that, with a favorable recommendation from the state, Banks scored deferred adjudication on cocaine charges months after he testified, despite his having a criminal record.

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