In
this Issue:
Texas Scheduled
to Execute
First African-American Woman in Modern History
Tell
Gov. Perry to Stop the Execution of Frances Newton
The state
of Texas is scheduled to execute Frances Newton on Sept.
14th for the 1987 murders of her husband and children.
If executed, Newton would be the first African-American
woman Texas has put to death since the state resumed executions
in 1982.
Tell
Gov. Perry to stop the execution of Frances Newton
Her trial
counsel was egregiously incompetent, she has a strong innocence
claim and her conviction rested in large part on the results
of ballistics testing conducted by the now-discredited
Houston Police Department's crime lab.
Furthermore,
Newton has been denied effective representation at nearly
every stage of her appeal and consequently, her case has
never been thoroughly or independently investigated. In
fact, on the very day her trial began, her attorney, Ron
Mock, admitted that he could not provide the name of a
single witness with whom he had spoken. Mock is well known
in Texas death penalty circles; he has had more clients
sent to death row than any other lawyer. Many of his former
clients have been executed and he is no longer assigned
death penalty cases because of his astonishingly abysmal
record as an attorney. Newton's current attorneys have
pointed out, there is a complex and overwhelming array
of facts and circumstances that call into question the
integrity and accuracy of her conviction.
Frances
Newton will be executed on Wednesday, September 14 is no
action is taken.
Please
write Gov. Perry and tell him to stop the execution
of Frances Newton.
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Without Evidence: Executing Frances Newton
Another Texas death row case marked by official carelessness,
negligence, and intransigence
by
Jordan Smith
The
Austin Chronicle: September 9, 2005
Unless the Texas Board of Pardons and Paroles and Gov. Rick
Perry act to stop it, on Sept. 14 Frances Newton will become
only the third woman executed by the state of Texas since
1982, and the first black woman executed since the Civil
War.
Unique in that historical sense, in other ways the Frances
Newton case is painfully unexceptional. For there is no incontrovertible
evidence against Newton, and the paltry evidence that does
exist has been completely compromised. Moreover, her story
is one more in a long line of Texas death row cases in which
the prosecutions were sloppy or dishonest, the defenses incompetent
or negligent, and the constitutional guarantee of a fair
trial was honored only in name.
As Harris
Co. prosecutors tell the story, the now 40-year-old Newton
is a cold-blooded killer who murdered her husband and two
young children inside the family's apartment outside Houston
on April 7, 1987, by shooting each of them, execution-style,
in order to collect life insurance. Newton had the opportunity,
they argued during her 1988 trial, and a motive – a
troubled relationship with her husband, Adrian, and the promise
of $100,000 in insurance money from policies she'd recently
taken out on his life and on the life of their 21-month-old
daughter Farrah. And she had the means, they say: a .25-caliber
Raven Arms pistol she had allegedly stolen from a boyfriend's
house.
To the
state, it is a simple, open-and-shut case, which requires
no further review. "Her case has been reviewed
by every possible court," Harris Co. Assistant District
Attorney Roe Wilson told the Los Angeles Times in November. "She
killed her two children and her husband. There is very, very
strong evidence of that."
Yet despite
Wilson's insistence, Newton's case isn't simple at all – and such "evidence" as there is,
is far from strong. "The State's theory is simple, and
it is superficially compelling," attorney David Dow,
head of the Texas Innocence Network at the University of
Houston Law Center, argued in Newton's clemency petition,
currently pending before the Board of Pardons and Paroles. "As
we will see, however, appearances can be misleading."
From
the beginning, Frances Newton has maintained her innocence.
She has also offered a plausible alternative theory of
the crime – a theory that neither police, prosecutors,
nor Newton's own trial attorney, the infamous and now suspended
Ronald Mock, have ever investigated. Newton and her defenders
contend that Adrian, Farrah, and 7-year- old Alton were likely
murdered by someone connected to a drug dealer to whom Adrian
owed $1,500. The alternative theory has much to say for it – among
other things, it explains the lack of physical evidence connecting
Newton to the bloody murders.
Lingering
questions about the physical evidence against Newton prompted
the Texas Board of Pardons and Paroles to recommend, and
Gov. Rick Perry to grant, a 120-day reprieve for Newton
on Dec. 1, 2004 – the day she was last scheduled
for execution. Although Perry said he saw no "evidence
of innocence" – legally, an oxymoron – he
granted the four-month stay to allow for retesting of evidence
contested by Newton's defense, including nitrite residue
on the hem of her skirt and gun ballistics evidence.
But testing
on the skirt proved impossible, because the 1987 tests
had destroyed the nitrite particles, and Harris Co. court
officials had stored the skirt by sealing it inside a bag
together with items of the victims' bloody clothing – thereby
rendering it worthless as evidence. The second round of ballistics
testing, on the other hand, supposedly confirmed a match
between the gun prosecutors say Newton used and the bullets
that killed her family. However, that match may be fundamentally
undermined – because there is no certain connection
between the gun and Newton. According to Dow, it appears
that police actually recovered at least two, and perhaps
three, .25-caliber Raven Arms pistols during their investigation
of the murders – conflicting evidence that neither
the police nor the prosecutors ever revealed to Newton's
defense. Dow argues that it is virtually impossible to know
whether prosecutors have been truthful in claiming that the
gun that Newton admits to hiding on April 7, 1987, was the
murder weapon. "How many firearms were recovered and
investigated in this case and who owned them?" Dow asks
in a supplemental petition filed with the BPP on Aug. 25. "How
many records have been withheld from Newton's attorneys throughout
this case?"
In short,
there is now even more doubt about Newton's guilt than
there was when she was granted the stay – distressing
Newton's many defenders, among them Adrian's parents, two
former prison officials, and at least one of the jurors who
heard Newton's case. "We never wanted to see Frances
get executed," Adrian's parents Tom and Virginia Louis
wrote to the BPP on Aug. 25. "When the trial occurred,
nobody from the [DA's] Office ever asked ... our opinion.
We were willing to testify on Frances' behalf, but Frances'
defense lawyer never approached us," they continued. "We
do not wish to suffer the loss of another family member."
Tell
Gov. Perry to stop the execution of Frances Newton
A Bloody Crime
In the months before the murders, Frances and Adrian
Newton were having marital problems. They were each
involved in extramarital relationships, and Adrian
was using drugs. In an Aug. 30 Gatesville prison
interview, Newton told me that in addition to smoking
marijuana, Adrian had developed a cocaine habit. "He had told me he was using cocaine,
but I'd never seen that, but I saw the effects of it," she
recalled. "He was home later, he was irritable, less
responsible."
But she
and Adrian had been together since she was a girl, and
she was determined to work things out. That was on her
mind on the afternoon of April 7, 1987, when she and Adrian
sat down and talked. "We had decided that we were going
to get through this together," she said. Adrian insisted
that he wasn't using anymore, so when they were done talking
and Adrian went into the living room "to watch TV ...
I decided to be nosy and see if he was being honest," she
recalled. Quietly, she opened the cabinet where he kept his
stash.
Execution opponents march at the Governor's Mansion.
photo by John Anderson
"That's when I found the gun," she said. Newton
said she immediately recalled a conversation she'd heard
earlier that day, between Adrian and his brother, Sterling,
who'd been staying with the family. "I couldn't hear
real close, but it sounded like they'd been in some trouble," she
said. "I thought I'd better take [the gun] out of there
because I didn't want it to be in the house ... I didn't
want him to get into any trouble." She removed the gun,
placed it in a duffel bag and took it with her when she left
the apartment around 6pm to run some errands, she says.
Newton says it was the last time she saw her family alive.
At 7pm, after a couple of errands, Newton arrived at her
cousin Sondra Nelms' house, where the two chatted and decided
to return to Newton's apartment. As Newton backed out of
the drive, she saw the duffel on the back seat and realized
she needed to hide it. With Nelms watching, Newton retrieved
the bag and walked next door into a burned and abandoned
house owned by her parents, and there (as both women later
confirmed), she left the bag.
The women
arrived at the apartment around 8pm, and didn't immediately
realize that anything was wrong. Newton thought Adrian
was napping – until she saw the blood. "As
Frances walked around the couch and saw his upper torso,
she immediately screamed and bolted to the children's bedroom," Nelms
said in an affidavit. "Frances began to frantically
scream uncontrollably. I could not calm her down enough to
elicit the apartment's address."
Newton
says she was shocked and dazed, but gave police as much
information as possible – including the fact that
she'd just removed a gun from the house. She told police
about Adrian's drug habit, and that he owed some money to
a dealer – which Adrian's brother, Terrence, corroborated,
telling police he knew where the dealer lived. Police never
pursued the lead. "To your knowledge, was the alleged
drug dealer ever interviewed by anyone in connection with
this case?" Newton's attorney asked Sheriff's Officer
Frank Pratt at trial. "No," Pratt replied.
A bullet
remained lodged in Adrian's head, meaning that the blood
and brain matter would have blown back onto the gun and
shooter – confirmed by a trail
of blood found in the hallway. Police found no trace of
residual nitrites (gunshot residue) on Newton's hands,
nor on the long sleeves of the sweater she was wearing.
They collected the clothing she'd worn that day. There
was no blood, nor any trace of blood, on any of the items.s
Tell
Gov. Perry to stop the execution of Frances Newton
Which Gun?
The next day, April 8, according to trial records, police
supposedly confirmed that the gun they had retrieved
from Newton's duffel bag in the abandoned building – at
her direction – matched the murder bullets. Yet Newton
was not arrested until more than two weeks later. Newton
says that Harris Co. Sheriff's Sgt. J.J. Freeze told her
that police had actually recovered two guns; in a sworn
affidavit, Newton's father Bee Henry Nelms says Freeze
told him the same thing and added that Newton would "eventually
be released." Nonetheless, Newton was arrested two
weeks later – after she filed a claim on Adrian and
Farrah's life insurance policies – and charged with
the capital murder of her 21-month-old daughter.
The state's
primary evidence against her was elementary: Newton had
filed for insurance benefits, and the Department of Public
Safety forensic technicians had detected nitrite traces
near the hem of Newton's long skirt – although
they couldn't say with certainty that the nitrites were not
her father's garden fertilizer transferred earlier that day
from the hands of her toddler daughter. For physical evidence,
the state relied primarily on the supposed ballistics match
to the gun Newton had hidden.
Yet in
court Freeze was somewhat vague: "I believe
we talked about two pistols," he testified. "I
know of one for sure, and there was mention of a second one
that Ms. Newton had purchased earlier."
There
are serious questions about the prosecutors' timeline,
which would have required Newton somehow to murder her
family, clean herself of any and all blood traces and gunshot
residue, and drive to her cousin's house – all
in less than 30 minutes. And since her 1988 conviction,
the question of a second gun has haunted Newton's case.
The ballistics evidence was increasingly suspect in any
case because of the recent history of the Houston PD crime
lab, which has been repeatedly charged with incompetent,
shoddy work, resulting in a number of exonerations and
the wholesale discrediting of the lab, which remains under
investigation. The lab's clouded reputation was one factor
that prompted Gov. Perry to accept the BPP's recommendation
to grant Newton a reprieve last winter.
Although
subsequent testing supposedly confirmed the ballistics
match, the search for the second gun continued. And in
June, Dow argued in Newton's clemency petition, the truth
finally began to leak out, and from the most unlikely place:
the Harris Co. District Attorney's Office. During a brief
videotaped interview with a Dutch reporter, Assistant DA
Roe Wilson inadvertently confirmed the existence of a second
gun. "Police
recovered a gun from the apartment that belonged to the husband," Wilson
acknowledged. "[It] had not been fired, it had not been
involved in the offense, " she continued. "It was
simply a gun [Adrian] had there; so there is no second-gun
theory."
Frances Newton at Gatesville Prison, August 2005
photo by Jordan Smith
Wilson
and her boss, DA Chuck Rosenthal, quickly retracted her
admission. Wilson told the Houston Chronicle that she'd
simply "misspoken," and Rosenthal accused Dow of
fabricating the idea of a second gun "out of whole cloth." "I'm
very clear," Rosenthal told The New York Times. "One
gun was recovered in the case." On Aug. 24, the Court
of Criminal Appeals agreed, dismissing Newton's most recent
appeal. "The evidence in this case was more than sufficient
to establish [Newton's] guilt," Judge Cathy Cochran
wrote. "The various details that [Newton] suggests her
trial counsel should have investigated in greater detail
do not detract ... from the single crucial piece of evidence
that concerns her: she disposed of the murder weapon immediately
after the killing."
Dow and
his University of Houston law students persisted, and late
last month may have succeeded. In August, Harris Co. investigators
provided testimony that police may have recovered at least
two identical .25- caliber Raven Arms pistols. In separate
affidavits, two police investigators recall tracing firearms
recovered in connection with the murders. Officer Frank
Pratt told one of Dow's students that he was assigned a
gun found in the abandoned house, which he traced to a
purchase by Newton's boyfriend's cousin at a local Montgomery
Ward. He also discovered, he told student Frances Zeon,
that the purchaser had also bought a "second,
identical gun"; but he didn't follow up on the second
gun, because "he felt there was no need to do so." Pratt
said he'd written up a report on the gun – a report
Newton's attorneys have never seen.
However,
Newton's attorneys do have a police report written by Detective
M. Parinello, who reported he had traced yet another firearm
recovered in connection with the case to a purchase from
Rebel Distributors in Humble, Texas, which he said also
ended up with Newton's boyfriend. "The
question arises: what recovered firearm was ... Pratt investigating?" asks
the clemency petition. "Counsel does not have access
to the Harris Co. Sheriff's Department's records in this
case. A request made directly to that institution for all
records in connection to its investigation of this offense
was rejected."
From all this conflicting yet incomplete gun evidence, it
seems reasonable to surmise that there is no way to know
which gun was in fact the murder weapon, or which gun was
delivered for ballistics tests in 1987 or this year. Since
the prosecution relied so heavily on a weapon that Newton
herself had delivered to them, the new evidence discovered
by her attorneys completely undermines her conviction.
At press
time, Harris Co. Sheriff's Office spokesman Lt. John Martin
was not able to reach Parinello or Pratt for comment but
said that a captain who worked the Newton case had said
there was only one gun recovered during the investigation.
Harris Co. DA Chuck Rosenthal reiterated that, "as far
as I know" there was only one gun recovered in the case.
However, he said that even if investigators had recovered
multiple firearms, and even if each were the same brand and
caliber, the fact remains that the weapon investigators recovered
from the abandoned house, which was immediately "tagged" and "tested," matched
the bullets recovered from the victims. "Let's say,
for conjecture's sake, that you ran down 50 or 100 guns,
all associated with the case," he said. "The fact
[is] that only one fired the bullets and that we know where
that gun came from."
Tell
Gov. Perry to stop the execution of Frances Newton
Criminal Defense
As in many Texas capital cases, a large part of the problem
with Newton's appeals is that her court-appointed trial
attorney, Ron Mock, never actually investigated her case.
If he had, perhaps he would've followed up the drug dealer
lead or Freeze's reported comments about a second gun.
Newton and her parents implored the trial judge to allow
her to change attorneys, and Mock admitted to the judge
that he hadn't talked to any prosecution witnesses, nor
had he subpoenaed any defense witness. The judge granted
the motion to remove Mock but he declined a continuance,
leaving Newton little choice but to go to trial with
Mock. "It
was stunning," she told me. "[Mock gets on the
stand and] says, 'I don't know anything,' and for the judge
to just dismiss it ... it was stunning." (Mock has
since been brought before the State Bar's disciplinary
board at least five times on various charges of professional
misconduct, for which he has been fined and sometimes suspended;
he is currently suspended from practicing law until late
2007.)
The Harris
Co. prosecutors' defense of the conviction has also worn
thin, especially given Roe Wilson's supposed "misstatement" about
the second gun. To Newton's mother, Jewel Nelms, Wilson's
admission is no mistake. "I've known all the time that
there was a second gun," she told Houston's KPFT radio
last month. "So I want to say again, to Roe Wilson,
I thank you ... very much for letting us know, indeed, that
there's somebody down there that knows about the second gun
and was willing to talk about it – even though I know
it wasn't her intention to do it."
Copyright © 2005
Austin Chronicle Corporation. All rights reserved.
Tell
Gov. Perry to stop the execution of Frances Newton
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