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Star-Telegram.com

2-21-12: Double-murder case returns to Fort Worth

Posted Thursday, Feb. 21, 2013

By Dianna Hunt

dhunt@star-telegram.com

State District Judge Louis Sturns will decide whether Death Row inmate Stephen Barbee should get a new trial in the killing of his ex-girlfriend and her 7-year-old son based on his appellate attorney's argument that the trial judge and Barbee's trial attorney had a "secret deal."

Sturns has set a hearing to begin Wednesday to consider evidence that Barbee's lead trial attorney, Bill Ray of Fort Worth, had an ongoing agreement with former state District Judge Bob Gill that caused important information to be withheld from Barbee's capital murder trial.

In court filings, Barbee contends that he was denied due process and a fair trial because his attorneys "had a conflict of interest that precluded them from effectively representing Barbee at trial."

Barbee's appellate attorney, A. Richard Ellis of California, said Monday that important evidence was not presented at the trial, which lasted less than three days.

"Circumstantially there was a very strong suggestion of conflict of interest," Ellis said.

Ray emphatically denied the contention.

"I did not have a deal with Judge Gill at all to do what he's saying," he told the Star-Telegram on Monday. "It's just a complete and total lie."

Gill, now a Tarrant County assistant district attorney, could not be reached Monday.

In February 2006, Barbee was convicted of capital murder and sentenced to death for killing Lisa Underwood, 34, who was seven months pregnant, and her 7-year-old son. Both were smothered.

Prosecutors said Barbee killed Underwood because he believed that he was the father of her unborn child and was concerned that Underwood would tell his new wife about their relationship. DNA tests later showed that he was not the father.

Three days later, investigators testified, Barbee confessed to the crime and led police to the bodies. Gill ruled that his confession was not admissible as evidence at trial but allowed the jury to hear similar statements he made to his wife and to a homicide detective in a bathroom.

The Texas Court of Criminal Appeals -- the state's highest court in criminal matters -- ordered the trial court to consider Barbee's appeal, and Sturns set the special hearing to hear evidence.

The allegation of a secret deal stems from an unrelated case in which Ray represented a woman facing revocation of her probation. During an appeal in federal court, Ray testified that Gill had a policy of personally handling plea bargaining with defendants facing probation revocation, and that the sentence was higher if the defendant rejected the plea offer, according to court documents.

The judge's handling of probationers allowed him to move cases quickly through his court without getting bogged down in mitigating evidence or other complications, Ellis said.

"What happened in Mr. Barbee's case has a strong link to what was going on in these probation revocation cases," Ellis said.

Ray had "favored status" at the time for receiving court-appointed cases from Gill, according to the court filing.

In an article about Gill's handling of probation cases, Associated Press writer Danny Robbins reported in 2010 that Tarrant County records indicated that Ray had received more than $700,000 from 2001 to 2007 from appointments in Gill's court. That was 43 percent of his total earnings from court appointments, Robbins reported.

Ray and Gill have been subpoenaed to testify in the Barbee hearing, which is expected to continue for two days in Sturns' 213th state District Court.

Dianna Hunt, 817-390-7084

Twitter: @DiannaHunt

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