HOUSTON — A Texas inmate seeking to stop his execution over claims of religious freedom violations and indifference to his medical needs is scheduled to die Wednesday evening for killing his pregnant ex-girlfriend and her 7-year-old son more than 17 years ago.
Stephen Barbee, 55, is scheduled to receive a lethal injection at the state penitentiary in Huntsville. He was condemned for the February 2005 deaths of Lisa Underwood, 34, and her son Jayden. Both were suffocated at their home in Fort Worth. They were later found buried in a shallow grave in nearby Denton County.
Barbee’s attorneys have asked the U.S. Supreme Court to stay his execution, arguing his religious rights are being violated because the state prison system, in the wake of a ruling by the high court on what spiritual advisers can do while in the execution chamber, did not create a written policy on the issue.
In March, the U.S. Supreme Court said states must accommodate the wishes of death row inmates who want to have their faith leaders pray and touch them during their executions. Texas prison officials didn’t formally update their policy but said they would review inmates’ petitions on a case-by-case basis and would grant most reasonable requests.
Earlier this month, U.S. District Judge Kenneth Hoyt in Houston issued a preliminary injunction, saying the state could only execute Barbee after it had published a clear policy on spiritual advisers that protects an inmate’s religious rights. Last week, the 5th U.S. Circuit Court of Appeals overturned Hoyt’s injunction, saying it was overbroad.
On Tuesday, Hoyt issued a new injunction focused specifically on protecting Barbee’s rights. The Texas Attorney General’s Office immediately appealed to the 5th Circuit, which would have to make a ruling before the Supreme Court could take up the issue.
The Texas Attorney General’s Office said in a previous court filing that Barbee’s claims are moot as state prison officials are allowing his spiritual adviser to touch him and pray aloud during his execution.
Also Tuesday, Hoyt denied a separate request by Barbee’s attorneys for an execution stay over claims the inmate’s right to avoid cruel and unusual punishment would be violated. His lawyers say Barbee has physical constraints that limit the movement of his shoulders and arms and he would experience “intolerable pain and suffering” if he is executed in the normal manner with his arms outstretched on the gurney so that IV lines can be placed to deliver the lethal injection.
In a court filing from earlier this month, lawyers with the Texas Attorney General’s Office assured Hoyt that prison officials would make accommodations for Barbee and allow his arms to remain bent and if needed would find another location to place the IV lines.
On Monday, the Texas Board of Pardons and Paroles unanimously declined to commute Barbee’s death sentence to a lesser penalty or to grant a four-month reprieve.
Prosecutors said Barbee killed his ex-girlfriend and her son because he didn’t want his wife to know Underwood was seven months pregnant, presumably by him. DNA evidence later revealed Barbee wasn’t the father. Underwood owned a Fort Worth bagel shop, which was named after her son. She and her son were reported missing after failing to show up at a baby shower.
Barbee confessed to police he killed Underwood and her son but later recanted. Barbee said the confession was coerced and has since maintained he is innocent and was framed by his business partner.
His trial, including sentencing, took less than three days to complete in February 2006.
Barbee is set to receive a lethal injection on the same day as Arizona plans to execute Murray Hooper for killing two people during a home robbery in Phoenix on New Year’s Eve 1980. Hooper is set to be executed at 11 a.m. CST (12 p.m. EST) on Wednesday.
If Barbee is executed, he would be the fifth inmate put to death this year in Texas. He is the last inmate scheduled for execution this year in the state.