May 1 Source : http://tal9000.tumblr.com

People always hold out DNA evidence as the magic bullet that will solve our criminal justice woes; though it’s not actually available in most cases, we can — when we do have it — scientifically determine the guilty from the innocent.

But not if we don’t test it.

Tomorrow, the State of Texas plans to execute Anthony Bartee for the 1996 murder of his friend David Cook in San Antonio.  Bartee has consistently maintained that although he was present at the house, he did not kill Cook.

Bartee was originally scheduled to be executed on February 28, 2012, even though DNA evidence collected at the crime scene had not been tested as ordered on at least two occasions by District Judge Mary Román. He received a reprieve on February 23, 2012 when Judge Román withdrew the execution warrant so that additional DNA testing could be conducted on strands of hair found in the hands of the victim, David Cook.  She also ordered the forensic lab to provide a detailed and comprehensive report to the court with an analysis of the results. Yet, before the testing occurred, Judge Román inexplicably set another execution date, for May 2, 2012.

According to Bartee’s attorneys, DNA testing was just conducted and indicated that hairs that were tested found in Cook’s hands belonged to Cook.  The jury never heard this evidence – and in fact wasn’t told about the hairs at all – which might have undermined the prosecution’s theory of the case that a violent struggle had ensued between Cook and his killer. Still, Judge Román entered the findings as unfavorable, opining that this evidence would not have made a difference in the outcome of the trial, had it been available to the jury. Under Article 64.05 of the Texas Code of Criminal Procedure, Bartee’s attorneys have the right to appeal the unfavorable findings. The fast-approaching execution date significantly impedes this right to due process, however.

In addition, there is still more evidence that has not been tested for DNA, including cigarette butts and at least three drinking glasses found at the crime scene. In 2010, the court ordered that all items that had not been tested be tested, but these items still have not been tested.

If the state is so certain that Bartee is guilty based on circumstantial evidence, what’s the harm in waiting a little while to finish testing all of the available DNA evidence? If the state turns out to be right, Bartee will almost certainly be executed in a couple of months; if the state turns out to be wrong, an innocent man is saved. Given those stakes, and the near-universal abhorrence of executing innocent people, it seems pretty clear what to do.

A petition is here. Please consider signing and passing it along.