By Danny Robbins
DALLAS (AP) -- A man condemned to die in Texas for the 2005 murder of his pregnant ex-girlfriend and her 7-year-old son is seeking a new trial on claims that his attorney had a "secret deal" with the judge to dispose of cases quickly.
Attorneys for Stephen Barbee will argue in state court in Fort Worth this week that the death row inmate received ineffective counsel because of the alleged deal between his court-appointed attorney, William H. "Bill" Ray, and the presiding judge, Bob Gill, when he was convicted of suffocating bagel shop owner Lisa Underwood and her son, Jayden.
The proceeding, scheduled to begin Wednesday and last two days, was ordered by the Texas Court of Criminal Appeals as a result of an Associated Press story in 2010 that revealed that Gill, unlike other judges, negotiated plea deals in probation revocation cases and that many of those cases were handled by Ray.
The arrangement made Gill's docket move faster because prosecutors weren't in the loop. It was disclosed by Ray during testimony in a 2009 federal court case but wasn't publicly known until the AP story because the judge ordered the case file sealed.
Prosecutors presented evidence at Barbee's trial that he had confessed to the killings. Authorities believed Barbee, now 44, wanted to hide Underwood's pregnancy from his wife, although DNA tests later revealed the unborn child wasn't his.
The trial, including sentencing, was wrapped up in less than three days in February 2006.
In seeking a new trial, Barbee's attorneys claim the swiftness of the proceeding was because Ray and his co-counsel, Tim Moore, presented a limited and ultimately ineffective defense as an accommodation to Gill.
"It was open and shut because the attorneys never opened the door," said A. Richard Ellis, the lead attorney representing Barbee in the quest for a new trial.
Barbee's application for a writ of habeus corpus in state court claims his trial attorneys tried to pressure him into pleading guilty, failed to investigate or present a case of actual innocence, fired a mitigation expert "for no apparent reason" and didn't inform a false confession expert of facts that might have changed his opinion.
The filing contends those matters are "understandable when viewed through the prism of what we now know about Judge Gill's manner of running a court."
Gill, who left the bench in 2007 and is now an assistant district attorney in Tarrant County, declined to comment, citing the pending litigation. Ray did not return a message from The Associated Press, but he told the Fort Worth Star-Telegram on Monday that he "emphatically" denied the existence of any deal with Gill.
"I did not have a deal with Judge Gill at all to do what he's saying," he told the newspaper. "It's just a complete and total lie."
Both are expected to testify at the hearing, which will be presided over by Gill's successor, Louis Sturns.
Steve Conder, chief of post-conviction writs in the Tarrant County district attorney's office, said he couldn't comment on the case other than to say he disagrees with Barbee's position.
The 2010 AP story revealed that Ray testified in federal court in May 2009 that there was no interaction with prosecutors when probation revocation cases were handled by Gill unless the cases were contested.
Ray testified in a hearing on a writ of habeus corpus filed on behalf of a mentally ill woman whose probation had been revoked in Gill's court. The woman, Sandra Wilson, contended that Ray, who had been appointed to defend her, was ineffective because he failed to bring up her mental condition even after she tried to hang herself in her jail cell.
Ray testified about Gill's procedure to explain why Wilson received a 15-year prison sentence after she rejected a plea deal in which the judge offered 12 years.
U.S. District Judge John McBryde vacated Wilson's sentence on the grounds of ineffective counsel and also noted he had "serious concern" that she had been denied due process because of Gill's procedure. He then sealed the file to protect Wilson's privacy.
The AP story also reported that Gill cleared more probation revocation cases than any other Fort Worth judge and that Ray was appointed in many of those cases, allowing him to earn more than $700,000 in the judge's court between 2001 and 2007.
Ellis said he hopes to show that Ray's handling of Barbee's defense was simply another facet of the attorney's relationship with Gill.
"What we're saying is there was a conflict, it wasn't just in probation revocation cases and, as a result of Judge Gill's unwillingness to listen to mitigation and his desire to run a fast docket, certain things weren't presented," Ellis said.
Published: Thu, Feb 23, 2012