>
http://www.austinchronicle.com/issues/dispatch/2005-09-09/pols_feature3.html
> Friday, September 9, 2005 | The Austin Chronicle (alternative weekly)
>
> Without Evidence: Executing Frances Newton
> Another Texas death row case marked by official carelessness,
> negligence, and intransigence
>
> BY JORDAN SMITH
>
>
> 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." 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.
>
> "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. 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."
>
> 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." 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." end story
>
> Newton's clemency petition is still pending before the Board of
> Pardons and Paroles. On Monday, Sept. 6, her attorneys filed a
> petition with the state district court in Houston and the Court of
> Criminal Appeals, claiming that the state's failure to disclose
> evidence of a second gun violated her right to due process. At press
> time, Gov. Perry's office had received more than 4,000 letters, faxes,
> e-mails, and postcards regarding Newton's impending execution - most
> imploring Perry to commute her death sentence to life in prison.
> Letters about Newton's bid should be addressed to: The Honorable Rick
> Perry, Office of the Governor, PO Box 12428, Austin, 78711-2428; and
> to Chairwoman Rissie Owens, Texas Board of Pardons and Paroles,
> Executive Clemency Unit, PO Box 13401, Austin, 78711.
>
> Copyright © 2005 Austin Chronicle Corporation.