DALLAS (AP) — A judge has rejected a condemned Texas man's claim that he deserves a new trial because of the relationship between his court-appointed attorney and the judge who initially heard his case.
State District Judge Louis Sturns of Fort Worth issued an opinion this week recommending that the Texas Court of Criminal Appeals not grant a new trial for Stephen Barbee, who was convicted six years ago of killing his pregnant ex-girlfriend and her 7-year-old son.
The opinion comes six months after Sturns presided over a two-day hearing dealing with Barbee's claim that his trial attorney, William H. Ray, performed ineffectively because of a "secret deal" with the trial judge, Bob Gill, to move cases quickly. Barbee made the claim after learning that Gill, unlike other judges, routinely negotiated plea agreements in probation revocation cases without input from prosecutors and that Ray represented defendants in many of those cases.
Barbee contended that the arrangement created a conflict of interest that tainted his case, but Sturns said that argument was invalid.
Barbee's lead post-conviction attorney, A. Richard Ellis, said Thursday that he couldn't comment on Sturns' recommendation because he had yet to receive it. But he said that if the Court of Criminal Appeals agrees with the recommendation, Barbee will return to federal court, where he has yet to exhaust his avenues for appeal.
Barbee, 45, was convicted of suffocating Fort Worth bagel shop owner Lisa Underwood and her son, Jayden, in 2005. The trial took less than three days in February 2006.
Gill left the bench in 2007 and was succeeded by Sturns. Gill is now an assistant district attorney in Tarrant County.
Gill testified during the hearing earlier this year that he thought Ray and his co-counsel, Tim Moore, did a good job despite having "a difficult case to try." Ray testified that he had doubts about Barbee's innocence but represented his client as best he could.
The hearing was ordered by the Court of Criminal Appeals after The Associated Press reported in 2010 that Gill was negotiating plea deals in probation revocation cases and that Ray was appointed in many of them. The arrangement made Gill's docket move faster because prosecutors weren't in the loop. Ray disclosed that information during testimony in a 2009 federal court case, but it wasn't publicly known until the AP story because the case file was sealed.
Ray, who earned hundreds of thousands of dollars from appointments in Gill's court, testified about the arrangement as part of his explanation for why a mentally ill woman received a 15-year prison sentence after she rejected a plea deal in which the judge offered 12 years.
Ray was found to have provided ineffective counsel in that case because he failed to bring up the woman's mental condition in court even after she tried to hang herself in her jail cell.