The Texas Court of Criminal Appeals on Monday halted the execution of Stephen Barbee. He had been set to die Oct. 2.
Barbee, 52, was sentenced to death in Tarrant County in the 2005 murder of his pregnant ex-girlfriend, Lisa Underwood, and her 7-year-old son, Jayden. According to court records, Barbee initially confessed during police interrogation to killing them because he feared Underwood would tell his wife that he was likely the father of her unborn child and that he would have to pay child support. He later recanted the confession, which his lawyer argues was “the product of fear and coercion,” and has since maintained his innocence.
The Texas court stopped next week’s execution because Barbee’s attorneys at his short, two-and-a-half day trial, admitted his guilt, likely in an attempt to secure the more favorable sentence of life in prison without the opportunity for parole. Barbee has said this concession of guilt after he pleaded not guilty was against his wishes, that he repeatedly told his lawyers he wanted to maintain his innocence and that his lawyers’ statement was “a complete surprise.”
The concession, Barbee argues, is a violation of his Sixth Amendment right to counsel. The argument was rejected earlier, but after a 2018 U.S. Supreme Court decision out of Louisiana, the Texas Court of Criminal Appeals ordered further review of the case.
In McCoy v. Louisiana, the high court ruled that “a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel’s experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.” Although other Texas death penalty appeals have raised the ruling unsuccessfully, the state appellate court decided Barbee’s case requires an opinion on the McCoy case's reach.
The Court of Criminal Appeals asked for the prosecution and Barbee to file briefs within 30 days of Monday's ruling to debate the issues raised in their latest filings on whether he qualifies for relief under the Supreme Court decision.
Tarrant County prosecutors argued that McCoy should not apply to Barbee because there was no record of him objecting to the concession of guilt, which the top Texas court recently said was necessary in a McCoy appeal. They also said Barbee didn't testify to claim his innocence. Barbee's appellate attorney, Richard Ellis, said his client could not object before the admission of guilt because he was unaware it was going to be given.
After his initial confession, Barbee argued that the another defendant in the case, his co-worker Ron Dodd, committed the murders alone and that he helped Dodd conceal the bodies. Barbee's lawyers admitted that they decided to argue that Barbee accidentally committed the murders, as he originally said, because "the 'Ron Dodd did it' theory just wasn't going to work," according to Barbee's latest filing.
In their order, the state judges said they will discuss and decide whether McCoy can be applied retroactively to convictions handed down before the high court's ruling, whether the ruling can apply to cases in which a defendant previously confessed, and if there must be evidence in the trial record that the defendant objected to the lawyer's strategy to concede guilt.
Ellis said Monday afternoon he was pleased with the appeals court ruling but noted that the court didn't yet overturn Barbee's conviction and grant him a new trial, which is what he ultimately has requested.
"We’re hoping that this gives the Court of Criminal Appeals the opportunity to rule that this is a fundamental right," he said of denying guilt concessions.
Barbee's execution was the third stopped by the Court of Criminal Appeals this year. Federal courts stopped three other scheduled executions. Six men have been executed in Texas in 2019, and eight more are scheduled for execution through December, including Robert Sparks on Wednesday.