FORT WORTH (AP) – The judge who presided over a condemned Texas man’s double-murder trial six years ago testified Wednesday that he thought the defense attorneys he appointed in the case did a good job.
Former State District Judge Bob Gill testified in state court that he believed the attorneys who represented Stephen Barbee, sentenced to die for killing his pregnant girlfriend and her 7-year-old son, were effective despite having “a difficult case to try.”
Barbee is seeking a new trial, claiming he received ineffective counsel because his lead attorney, William H. “Bill” Ray, had a “secret deal” with Gill, who retired from the bench in 2007, to make cases move quickly in the judge’s court.
Wednesday was the first day of a two-day hearing in front of Judge Louis Sturns, who succeeded Gill on the bench. Sturns will recommend to the Texas Court of Criminal Appeals whether a new trial is warranted.
Gill, now an assistant district attorney in Tarrant County, acknowledged he had an “arrangement” with Ray to let the attorney handle most of the probation revocation cases involving indigent defendants in the judge’s court. But he described it as a matter of picking the most available attorney.
“Mr. Ray came around the courthouse and made himself available for court on Fridays, which is when I handled most of my probation revocation hearings,” Gill testified.
Barbee was convicted in 2006 of suffocating bagel shop owner Lisa Underwood, then seven months pregnant, and her son, Jayden.
During the trial, a Fort Worth police detective testified that Barbee confessed to the crime, saying he killed Underwood because she threatened to break up his marriage. A videotaped confession was ruled inadmissible by Gill.
DNA tests later found that Barbee wasn’t the father of Underwood’s unborn child.
Barbee, 44, is attending the hearing in a wheelchair. His mobility has been impaired because of a back problem and hip replacement surgery, his lead appellate attorney, A. Richard Ellis, said.
Most of the hearing Wednesday was taken up by a series of witnesses called by Barbee’s attorneys to testify that Ray and his co-counsel, Tim Moore, either ignored or minimized positive information about their client that could have helped him during sentencing.
One witness was a social worker who said she was hired by Barbee’s trial defense team to develop mitigating evidence but was later fired.
The social worker, Amanda Maxwell, testified that the “overriding theme” from Ray and Moore was that Barbee plead guilty, even though he was adamant that he was innocent.
She described one occasion in which Ray and Moore showed Barbee autopsy and crime scene photos in an attempt to get him to enter a guilty plea. The attorneys’ attitude was “look here at what you’ve done,” she testified.
Asked by Ellis how Ray and Moore viewed Barbee, Maxwell replied: “They found him disgusting because he cried. They believed he was a (weakling).”
Maxwell testified that Ray asked her to include positive and negative facts about Barbee’s past in her report, a request that wasn’t in line with the usual practice of using only positive material.
Maxwell said Ray did not use portions of the mitigating evidence she developed. However, under cross examination, she acknowledged that some of it did come into play during sentencing, though not through testimony elicited by Ray.
The Texas Court of Criminal Appeals ordered that Barbee receive the hearing as a result of an Associated Press story in 2010 that revealed how Gill, unlike other judges, negotiated plea deals in probation revocation cases without input from prosecutors and that Ray was appointed to represent many of those defendants.
Ray detailed Gill’s procedure during testimony in a 2009 federal court proceeding, but the case was under seal and unknown to the public until the AP disclosed it.
The AP story reported that Gill cleared more probation revocation cases than any other judge in Fort Worth during his 14 1/2 years on the bench and that Ray received more than $700,000 from his work in that court between 2001 and 2007.
Ray is expected to testify Thursday.
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