As Texas prepares to execute Frances Newton on September 14, the Austin American-Statesman editorialized about the poor quality of representation she received at trial and the doubts that this raises about her conviction. The paper noted:

Maybe Frances Newton shot her husband and two children to death in 1987. Maybe she didn’t. The public cannot be certain of her guilt, but she’s going to die for the crime anyway.

Newton was denied a basic requirement for a fair trial — a competent lawyer. Her attorney at trial was the notorious Ron Mock, whose shoddy work in capital murder trials is well known in legal circles. He has been repeatedly disciplined by the State Bar of Texas, and has since been disqualified from handling capital cases. No less than 16 people whom Mock represented were sent to death row. Mock apparently did no investigation of Newton’s claims of innocence. When asked by a trial judge, he could not name a single witness he had interviewed on Newton’s behalf.

How many times must this scene be repeated before the Texas Court of Criminal Appeals, the state Board of Pardons and Parole or the U.S. Supreme Court intervenes in death sentences won on defense incompetence?

A competent lawyer should be provided for defendants facing the death penalty. The rule of thumb in Texas seems to be that only those who can afford a competent lawyer are entitled to one. Newton couldn’t afford a good lawyer, so the state appointed Mock to represent her.

She is scheduled to be executed on Wednesday despite plenty of doubt her new lawyers have raised regarding the triple murder for which she was convicted. Tom and Virginia Louis, the parents of the man Newton was convicted of killing, have their doubts.

“We are the parents of Adrian Newton and the grandparents of Alton and Farrah Newton … We were willing to testify on Frances’ behalf, but Frances’ defense lawyer never approached us,” they said in a letter to the Board of Pardons and Parole asking for leniency.

Indigent defendants must rely on the state system. The state’s court-appointed lawyer system has improved significantly in the past five years because of legislation aimed at weeding out incompetent lawyers and recruiting better lawyers for people who can’t afford to hire their own. The 2001 Texas Fair Defense Act does set minimum requirements for attorneys representing capital murder defendants. (The emphasis is on “minimum.”)

But those who were convicted before 2001 were under a system that declared any lawyer with a pulse and law license competent. That included lawyers who slept during trial or were doped up as they prepared for trial. It included lawyers who did little or no investigation.

The Texas Court of Criminal Appeals refuses to hear any new evidence or facts in Newton’s case — and many others like it — because those facts were raised after court deadlines expired.

And that’s the rub. The state appeals court is not deciding Newton’s case based on the merits of new facts or legal issues. It has rejected her appeal because she missed a deadline.

We’ve said it before, but it’s worth repeating: Race, ethnicity, income and geography are all factors in the imposition of death sentences.

As long as Texas has a death penalty, capital defendants should have access to competent legal counsel. Newton didn’t get that. For that reason, she should be spared.

(Austin American-Statesman, September 12, 2005). See Women and Representation.