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Saturday, August 27

Francis Newton is just another dead person walking

Jake wants to know about the upcoming execution of a woman on Texas' Death Row. WaPo has a piece about her today and the Chronicle had one yesterday.

A little legal knowledge first: In Texas, a claim of innocence itself is not the basis for an appeal. There has to be an error in the procedural way the trial was conducted. All death row cases are automatically appealed to the Texas Court of Criminal Appeals which is the highest court in Texas for criminal matters. Texas, and Oklahoma, have what are called bifurcated courts of appeal. Civil matters and juvenile matters are appealed to the Texas Supreme Court while criminal appeals go to the Texas Court of Criminal Appeals.

Her appeal was denied at the Texas Court of Criminal Appeals.

Francis Newton evidently had poorly equipped counsel at her trial. Harris County--capital of capital punishment, sending more people to death row than any other state alone, does not have a public defender's office for state offenders. The Southern District of Texas, in which Harris County is located, does have a public defender's office for federal matters, but the State of Texas does not provide funding for such an equivalent on the state level.

There is a real possibility that a capital defendant like Ms. Newton may not be assigned an experienced defense attorney.It is up to the judge to assign the indigent defendant an attorney to represent them, from a list of available attorneys who may or may not have contributed to their campaign, as all judges including appellate judges, are elected in Texas. These defense attorneys don't have the money or resources to represent the client on the same level that the state has to prosecute the client. That attorney usually makes their living representing indigent clients and is paid a flat fee for each case by the court. Their job is to move people and paper through the system and not make waves so they can get another appointment.

I have no personal knowledge of Ms. Newton's counsel. So I can't really shed any light on that aspect of her appeal, other than to say it would not be surprising if her case was any different than what I have described above.

Secondly, the Harris County Crime lab is a nightmare. Evidence is lost in a huge warehouse, forensic evidence is subjected to mismanagement. It ain't CSI. I will put it to you this way, the budget for that CBS hit series is higher than the budget for reality in Harris County. But the stakes are higher in Harris County. Our "guests" get to die on death row and don't show up in future episodes. But this is America and entertainment is far more important than reality. There is no William Peterson-like character at the Harris County Crime Lab. And remember, even on CSI, they work for the state, not the defense. The defense usually does not have the resources to fight the crime labs' findings in any state.

Her appellate attorneys--a different class of attorney than regular defense attorneys--have plead that evidence was mishandled. There may have been two guns in the state's evidence warehouse in this matter, but her defense attorneys only knew of one. If the state didn't give exculpatory evidence to the defense, which they are required to do, it may be what is known as revers able error and she should get a new trial--if the appellate courts want to hear it. They don't have to if they don't want to. Her appellate attorneys are going to take this case federal now because they have gotten no where with the state appellate court. The basis of her federal appeal will come from the Fourteenth Amendment due process and equal protection clauses. She may have been denied due process and equal protection of the system if she didn't get effective counsel or was entitled to evidence which may have been withheld by the state.

Her story is unremarkable. This time the defendant is a woman. Next time it will be a man, the time before it was a man. I am not so troubled by the state executing a woman. Equal rights. She has every right to be screwed by the system as the next man. The death penalty is wrong because we are human, it is a human system, and it is flawed. So many people believe that if the government says someone is guilty and the defense bar isn't independent and financed to fight that system--they are a problem in that system--then justice is often the product of human error. Even if she is guilty, what is the point of executing her? The appellate process is more expensive than a simple life sentence without parole.

DNA wouldn't have made any difference in this matter. Ballistics and procedure would have. Did the state hide evidence from her defense team? Did they have the guts to ask? In Texas, as opposed to television law, defendants don't even have a right to the state's witness list and a copy of the indictment. District Attoneys who prosecute crime in Texas are supposed to do justice, not convictions. But justice doesn't get you re-elected in a state where executions are a kind of blood sport. It is like the state's hunting dogs chasing the fox. It has a long history. Jesus didn't have a defense attorney and if he had, with what would the poor son of God had paid his attorney that could compete with 30 pieces of silver the state paid to their snitch, Judas. The advantages belong to the state and they don't go to the death chamber when they lose. When they win, they get re-elected on their conviction record.

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