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Star-Telegram.com

2-24-12: Judge, defense lawyer in 2006 Barbee trial deny conflict

Posted Friday, Feb. 24, 2012

By Deanna Boyd

dboyd@star-telegram.com

FORT WORTH -- The lead defense attorney at Stephen Barbee's capital murder trial in 2006 said Thursday that Barbee and his family had unrealistic expectations about what could be done in court.

"He wanted me to present a lot of testimony that I could not present," Bill Ray testified Thursday.

He did all he could to keep Barbee off Death Row, Ray said.

Ray was testifying during an evidentiary hearing before state District Judge Louis Sturns in response to Barbee's appeal of his conviction for the smothering deaths of Lisa Underwood, who was seven months pregnant, and her 7-year-old son, Jayden, in 2005.

Barbee's appellate attorneys say Barbee was deprived of a fair trial because of a "secret deal" between Ray and then-state District Judge Bob Gill.

They contend that Gill frequently appointed Ray to handle parole-revocation cases in which the judge tried to negotiate plea deals with the defendants to keep the cases moving more quickly through his docket. That arrangement, the attorneys said, created a conflict of interest that affected how the defense attorneys represented Barbee.

During the two-day hearing, Gill, Ray and co-defense counsel Tim Moore denied any conflict.

The hearing ended Thursday evening. Sturns will recommend to the Texas Court of Criminal Appeals whether Barbee should get a new trial.

Emotions remain high

During a break in the hearing, Sheila Underwood, the mother and grandmother of the victims, spotted Barbee talking to his mother, Jackie Barbee.

"What is that?" a visibly shaken Underwood exclaimed, standing up, pointing and glaring at Barbee as the conversation continued. "I am furious!"

Underwood, obviously on the verge of crying, said she was going to lodge a complaint and walked out of the courtroom after first saying "Pigs!" in the direction of Barbee and his mother.

She briefly returned, left again crying and eventually came back to listen to more testimony.

Differing accounts

Barbee always maintained that he was innocent of capital murder, Ray said, but Barbee gave different versions of his involvement in the deaths.

Those versions ranged from initially claiming that he hadn't seen Lisa Underwood for several months to that he accidentally caused the deaths and ultimately that his employee, co-defendant Ron Dodd, was to blame.

Ray said those inconsistencies, along with Barbee's refusal to testify, made developing a defense theory in which Barbee would be acquitted -- or found guilty as a party to the slayings -- difficult.

"I felt like he believed he was innocent and he had maintained that, but I felt like the facts didn't bear that out," Ray testified.

During Barbee's trial, prosecutors argued that he committed the slayings to keep his new wife from finding out about his relationship with Underwood and about her unborn child, which later was shown not to be his.

Prosecutors contended that Dodd brought Barbee the shovel used to bury the bodies. Dodd pleaded guilty to two counts of tampering with physical evidence and was sentenced to 10 years in prison.

Ray said no usable evidence or testimony supported the idea that Dodd was the killer. Also, Barbee, who confessed to police and his wife, refused to take the stand to implicate Dodd, Ray said.

"I think [Dodd] had a lot more to do with this than what came out, but that didn't change my problem," Ray said.

He denied trying to pressure Barbee into pleading guilty.

"I explained to him in light of his statement to police that we were going to have a pretty hard time proving he didn't do this, and I suggested that if there was some way I could get this case worked out with the [district attorney's office], he should consider it," Ray said.

Mitigating testimony

Appellate attorney Richard Ellis said Ray and Moore didn't use experts who could have testified about Barbee's head injuries, his hydrocodone abuse and other factors that might have made a difference to jurors in deciding to sentence Barbee to death or life in prison. Several character witnesses were not called, he said.

Jurors must consider such so-called mitigating factors in capital cases.

Moore denied Ellis' assertion that the attorneys showed Barbee and relatives a police video of Barbee confessing to his wife in an attempt to pressure their client into pleading guilty or to change the family's mind about his guilt.

"The family was convinced that Mr. Barbee was not guilty," Moore said. "We wanted them to look at it so they would be well-informed of what we were dealing with."

Evaluation rebutted

Prosecutors Chuck Mallin and Steve Conder called only one witness -- Dr. Randy Price, a clinical and forensic psychologist -- to counter the contention that the defense attorneys should have requested a neuropsychological evaluation of Barbee because they knew about his history of head injuries.

Price testified that he reanalyzed the findings of a neurological test conducted after the trial. A doctor had concluded that Barbee has a brain impairment that could explain why he engaged in violent behavior without considering the consequences.

Based on his analysis, Price testified, the test results did not indicate any brain injury.

Deanna Boyd, 817-390-7655

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