Nation - Texas Secret testimony reveals judge acted as prosecutor Method for clearing docket could result in many revocations being overturned

By Danny Robbins

Associated Press Writer

FORT WORTH, Texas (AP) -- For years, probation revocation cases involving thousands of defendants moved through the courtroom of one Texas judge with remarkable efficiency.

Robert K. "Bob" Gill disposed of nearly 8,000 such cases in 14 years as a state district judge before his retirement in 2007. No other judge in Tarrant County handled more.

But the method he used to clear his docket, detailed in secret testimony obtained by The Associated Press, raises fairness and ethical concerns for legal experts and leads some to believe that many of the revocations could be overturned.

An attorney who regularly represented indigent probationers facing revocation in Gill's court has testified that the judge personally negotiated plea deals, a role normally reserved for prosecutors. Rejecting Gill's offer often meant a tougher sentence if he later heard the case and decided a violation occurred, the attorney, William H. "Bill" Ray, said under oath.

"In his court as opposed to other courts, there was no interaction with the prosecutors," Ray testified. "They didn't enter into the conversation unless it became a contested matter."

Ray, a well-known Fort Worth criminal defense attorney, testified at a hearing in federal court last May that was part of a case that has since been sealed. Documents from the case were obtained by the AP.

The testimony suggests conduct that would violate defendants' constitutional right to due process, according to some who study criminal law and judicial matters.

"The judge, after all, is supposed to be a neutral referee," said John Schmolesky, a law professor at St. Mary's University in San Antonio.

Attorneys who specialize in post-conviction issues said Ray's testimony raises the possibility that every revocation in Gill's court could be challenged, although defendants who have already been denied relief on other grounds would face significant legal hurdles.

Nearly 60 percent of the probationers who wound up back in Gill's court had their probations revoked, according to Tarrant County court data reviewed by the AP.

Gill, who now works as a deputy chief in the Tarrant County district attorney's office, said in an interview that Ray's testimony, while generally accurate, was an "oversimplification."

He said he made sentence "recommendations," not plea deals, and only when defense attorneys asked. He said he felt comfortable doing it because he knew the cases and the probation system better than prosecutors.

"To me, it was cutting out a step that was unnecessary," he said.

Gill said he saw no conflict in presiding over hearings in cases where his recommendations were rejected because hearings are "a whole new ball game," often involving witnesses and new information.

He said he recused himself the one time an attorney complained.

The Tarrant County District Attorney's Office was aware of what Gill was doing, said Alan Levy, chief of the criminal division. Although he acknowledged that the judge's procedure was "contrary to the way every other court has ever handled these cases," he said the DA's office went along with it because cases moved rapidly, sentences seemed to fit the offenses and defense attorneys didn't complain.

"No, (the process) was not approved by us," Levy said. "But he's the judge. It's his court. If we were worried about our rights, I suppose we could have intervened at some point. But it wasn't our rights (being affected)."

The county's longtime DA, Tim Curry, died last April. He was replaced by Joe Shannon, chief of the economic crimes unit. Shannon said he had no knowledge of Gill's method for handling probation revocations until the AP asked about it.

Gill's procedure became an issue during a hearing on a writ of habeus corpus filed on behalf of a mentally ill woman whose probation was revoked in his court in 2007.

The woman, Sandra Wilson, contended that Ray, her court-appointed attorney, was ineffective because he failed to mention her mental condition even after she tried to hang herself in her jail cell.

The focus shifted to Gill when Ray testified that 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 later vacated Wilson's sentence on the grounds of ineffective counsel. But he also noted Gill's "unusual procedure" for sentencing and said he had "serious concern" that it denied Wilson due process.

A day after issuing his ruling, McBryde sealed the case, citing its "sensitive nature."

In an e-mail to the AP, McBryde's assistant, Linda Runnels, said the judge sealed the file because it contains "highly personal" information about Wilson that he didn't believe the public should have access to.

Roderick White, the Fort Worth attorney who successfully argued Wilson's case, declined to be interviewed, citing the sealing order. However, in an e-mail, he said he is concerned "for the potentially widespread federal and state constitutional rights violations inherent in Judge Gill's probation revocation process."

Ray said in an interview that he disclosed McBryde's ruling to Tarrant County's district court judges and they have allowed him to continue representing indigent defendants on the condition that he attend a five-hour seminar on mitigation.

Ray has received more than $1.3 million from court appointments in Tarrant County the last five years, the most of any attorney, according to data compiled for the AP by the county auditor.

In giving Ray most of the appointments for probation revocations in his court, Gill bypassed the rotation system, or "wheel," usually used for matching attorneys with indigent defendants.

The Texas Fair Defense Act, in effect since 2001, requires counties to have an impartial system for making court appointments, but it doesn't explicitly state that probation revocations must be included. Consequently, some counties, including Tarrant, allow judges to choose attorneys for those cases.

Ray earned $710,000 from his work in Gill's court between 2001 and 2007, an amount that represented 43 percent of his total earnings from court appointments, according to the auditor.

When Gill ran for re-election in 2004, Ray was the largest contributor to the campaign, giving the judge, who was unopposed, $1,000.

Gill said his relationship with Ray was no different from any other defense attorney and that the appointments were based on Ray's reputation as a hard worker.

"I wanted someone who would get to work on the cases and would be available to the court when I had hearings," he said.

Published: Tue, Feb 23, 2010


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