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.



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