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Star-Telegram.com

2-22-12: Consultant says convicted killer's attorneys pressured him to plead guilty

Posted Wednesday, Feb. 22, 2012

By Deanna Boyd

dboyd@star-telegram.com

FORT WORTH -- A mitigation specialist hired by defense attorneys in Stephen Barbee's 2006 capital murder trial testified Wednesday that the attorneys frequently pressured Barbee to plead guilty and didn't explore or present some evidence that she believes could have helped the Death Row inmate.

Amanda Maxwell testified that Barbee's trial attorneys, Bill Ray and Tim Moore, failed to delve more into what she said were mitigating circumstances in the case, including several head injuries Barbee had suffered throughout his life and his abuse of hydrocodone for one of those head injuries.

In February 2006, Barbee was convicted of capital murder and sentenced to lethal injection for the smothering deaths of Lisa Underwood, 34, who was seven months pregnant, and her 7-year-old son, Jayden.

Prosecutors said Barbee killed Underwood because he believed that she was pregnant with his child (DNA tests later proved he was not the father) and wanted to keep their relationship from his wife.

Maxwell was the first to testify in a hearing before state District Judge Louis Sturns over allegations by Barbee's appellate attorneys that important information was withheld from Barbee's capital murder trial due to a "secret deal" between then-state District Judge Bob Gill and Ray, Barbee's lead attorney.

Barbee's appellate attorney, A. Richard Ellis of California, has said federal court testimony by Ray in connection with an unrelated case -- made public in 2010 in an article by The Associated Press -- revealed that Gill had negotiated plea deals in probation revocation cases, many of which he had appointed Ray to handle, to move cases more quickly though his docket.

Ellis says that because of that conflict of interest with the judge, Ray failed to provide effective counsel and deprived Barbee of a fair trial.

Gill, now a Tarrant County assistant district attorney, and the defense attorneys deny the accusation.

Late Wednesday afternoon, Gill, who presided over the 213th District Court until his retirement in 2007, took the witness stand, denying that he and the attorneys had any agreement about how they would handle Barbee's defense.

"All I expected lawyers to do was to represent their client to the best of their ability," Gill said.

Gill testified he believed the attorneys did a good job in defending Barbee.

"They had a difficult case to try," Gill said.

Gill acknowledged appointing Ray to several of the revocation cases in his courtroom but said that it was an acceptable practice under the county's indigent plan and that he did it because Ray familiarized himself with each case and took care of his business, unlike some other attorneys.

He also defended his handling of revocation cases while a judge, testifying that he never asked other judges how they handled probation revocation cases and that he did not believe it was a conflict of interest to preside over revocation hearings in which the defendant had rejected his plea offer.

Sturns set the special hearing after the Texas Court of Criminal Appeals ordered the trial court to consider Barbee's appeal. Sturns will then draw facts and conclusions from the hearing and make a recommendation to the Texas Court of Criminal Appeals about whether a new trial should be ordered.

'It was dismal'

Maxwell testified Wednesday that Ray and Moore treated the capital murder case differently than other such cases that she later worked.

"They found him disgusting because he cried," Maxwell said of the defense attorneys' feelings for Barbee. "They believed he was a wussy."

Maxwell said she was instructed by Ray to include both the positive and negative information she learned about Barbee through her interviews in her mitigation report -- a practice that she said is not routine procedure.

She also said the defense attorneys never responded to her requests that specific medical evaluations be done on Barbee. She also testified that the attorneys frequently pressured Barbee into pleading guilty and once showed Barbee the gruesome crime-scene and autopsy photographs to try to persuade him.

"Look at these. Look at these pictures. Just look here what you did," Maxwell quoted the attorneys as telling Barbee when asked to describe the mood in that meeting.

Maxwell said that the attorneys did not call some witnesses during the criminal trial that she thought would be beneficial to Barbee and that others had been instructed by a defense investigator not to cry or show any emotion during their testimony. Maxwell said she believed the mitigation testimony given in the trial was ineffective.

"It was dismal," Maxwell said. "It was not the information that had I been allowed to prepare the witnesses would have come forward."

Chuck Mallin, chief of the appellate unit, and Assistant District Attorney Steve Conder, however, countered Maxwell's testimony that the attorneys never presented several pieces of what she believed was mitigating evidence in the case, including Barbee's stint as a reserve officer for Blue Mound police, a previous suicide attempt and a serious workplace head injury that Barbee had suffered about a month before his arrest.

Through cross examination, the prosecutors showed Maxwell a transcript which showed the details did, in fact, come out during the punishment phase of the trial.

Maxwell said she should have stated that she could not recollect such testimony, but later elaborated under redirect questioning by Ellis that the defense attorneys never really pushed that evidence during the trial.

"Nobody stood up and said this impacted his judgment and this impacted his judgment and this impacted his judgment," Maxwell testified.

Prosecutors also pointed out in their questioning that Maxwell was not aware of all the work conducted by the defense team on Barbee's behalf, and that some of the witness information and reports, if used in trial, could have been used by prosecutors to reveal some unfavorable things from Barbee's past, including alleged acts of vandalism and road rage.

Former friends of Barbee's, as well as a former pastor of an Azle church where Barbee had led a children's group, also took the stand Wednesday, testifying that they would have testified on Barbee's behalf if they had been called as witnesses in the capital murder trial. Two other witnesses -- the co-pastor at the church and a relative of Barbee's -- said defense attorneys failed to ask them many questions when they testified during the capital murder trial, including whether they believed Barbee posed a future danger. The answer, both testified Wednesday, would have been no.

Barbee, dressed in a red jumpsuit, was brought in and out of the courtroom Wednesday in a wheelchair. Ellis said Barbee has severely limited mobility as the result of the workplace injury, in which he was struck in the head by a 400-pound pipe.

Deanna Boyd, 817-390-7655

Twitter: @deannaboyd

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