Sept. 10 TEXAS: Woman's execution remains on schedule----Appeals court says gun argument not new in slaying of Newton's family Frances Newton, condemned for the 1987 murder of her husband and two young children, was a step closer to execution Friday after the Texas Court of Criminal Appeals dismissed her latest application for writ of habeas corpus, saying she had presented no new evidence to warrant a stay. In a petition filed Tuesday, Newton's Texas Innocence Network attorneys argued that two, possibly three, pistols were recovered the night that Adrian Newton, 23, and the couple's children, Alton, 7, and Farrah, 21 months, were shot to death at their Harris County apartment. If multiple weapons were seized as evidence, they contended, it's possible authorities bungled their processing and that a key element of the prosecution's case - that the pistol Newton hid after the killings was the murder weapon - is false. "Is it plausible to think that the Houston Police Department ballistics lab mixed up the weapons?"attorney David Dow asked Friday. "Well, in view of what we know now - from faulty ballistics evidence in other cases, to dozens of mistakes in DNA analysis, to scores of boxes of lost or missing evidence - I would think that only the most stubborn, naive or disingenuous prosecutor would say with any confidence that Newton is guilty." Newton, who claims she is innocent, is scheduled to die Wednesday for killing her family to gain $100,000 in insurance death benefits. She would be the 3rd woman put to death in Texas since the state resumed executions 23 years ago. Dow and co-counsel Jared Tyler, both University of Houston law professors, buttressed their contention by citing a videotaped news interview in which Assistant District Attorney Roe Wilson said a second pistol had been found, as well as post-trial interviews with two sheriff's investigators that suggested more than one weapon ended up in police custody. Wilson, who has recanted her videotaped statement as incorrect, insisted Friday that police recovered only one pistol, a .25-caliber Saturday night special that Newton dumped miles from the crime scene after the killings. Three ballistics tests have confirmed that semiautomatic as the murder weapon, she said. The defense's multiple-gun theory, she said, is a "smoke screen." In dismissing this week's petition, the defense's fourth application for writ of habeas corpus, appeals judges cited Section 5, Article 11.071 of the Texas Code of Criminal Procedure, which, in essence, prohibits the court from revisiting issues it has considered. "(Newton) has provided two affidavits from her investigators ... ," the court wrote. "She alleges these affidavits are new evidence supporting this new claim. We disagree. We find this is old evidence and old argument in a new form." In late August, the court rejected an earlier second-gun claim noting, "No second gun has been produced." But, the court continued, "Even assuming that 50 guns had been found in Adrian's apartment, it was the .25 Ruger belonging to the applicant's (Newton's) lover that was the murder weapon and that (the) applicant hid." The court also has rejected as inadmissible claims that Newton received inadequate representation in her first trial, that court testimony regarding Newton's future dangerousness was misleading and that the prosecution destroyed and/or contaminated crucial evidence - the dress Newton wore on the night of the murders - while testing its stains. Those issues, the court held, could not be considered because either they were not new or they dealt with the sufficiency of evidence in the trial, a matter that cannot be considered in habeas corpus deliberations. 'Part of our family' Adrian Newton's parents, Tom and Virginia Lewis, have written the pardons board, declaring, "We never wanted to see Frances get executed." "Frances is part of our family," the couple wrote. " ... She and our son were together for 7 years, and during that time, we were a big, happy family. We would go on outings to the beach, to the pool, to barbecues and all kinds of fun stuff." Trial testimony revealed that Newton and her husband, a user and seller of drugs, had a rocky marriage. Adrian Newton engaged in numerous extramarital affairs; Frances Newton spent the night before the murders with her lover, whose pistol was used in the crime. In addition to this week's action, defense attorneys have filed petitions on Newton's behalf with the U.S. 5th Circuit Court of Appeals, the U.S. District Court-Southern District of Texas and the Texas pardons board. (source: Houston Chronicle) *********************** Condemned woman optimistic she won't be executed this week Tears well in her eyes when Frances Newton talks about her children. "I wonder how they would have turned out," she says, her voice wavering. "Would they be happy, well-adjusted kids?" Alton was 7 and Farrah nearly 2 the last time she saw them and their father at the family's Houston apartment in 1987. Adrian Newton, 23, was fatally shot in the head. Both children were shot in the chest. 2 weeks later, Frances Newton was arrested for their slayings. This week, Newton, now 40, is scheduled to be transferred from the Texas women's death row outside Gatesville to a prison in Huntsville, 140 miles to the southeast, where she faces lethal injection Wednesday. "I remain encouraged," she said in a recent interview with The Associated Press. "Concerned, but always optimistic." The execution would be the 13th this year in Texas, but only the fourth of a woman since the Civil War and the 1st of a black woman. Nationally, she'd be the 11th woman put to death since the U.S. Supreme Court in 1976 allowed capital punishment to resume after a decade-long hiatus. Newton, who insists she is innocent, has prepared for this journey before. Late last year, Newton made the trip to a small holding cell outside the Texas death chamber. Then she learned about two hours before her scheduled punishment time Dec. 1 that Gov. Rick Perry, agreeing with a recommendation from the Texas Board of Pardons and Paroles, had given her a reprieve so additional evidence testing could be done. "Not that I had a choice," she said. "I anticipate leaving here. I didn't anticipate going that way." But when the tests on a weapon prosecutors said was used in the slayings confirmed the earlier ballistics examinations, Harris County prosecutors sought the new execution date. "I don't know if it gets any easier," Newton said. "The whole thing of being here is hard anyway. The whole nightmare is very difficult. It's distressing because there are so many questions in this case." Questions raised by Newton and her appeals attorneys center on what they argue was a woeful legal defense at her trial, mishandling of evidence by the state and withholding of information about a 2nd gun from the crime scene. "The police recovered multiple guns, they mixed them up, and Newton did not have access to the murder weapon," said David Dow, one of her lawyers. Dow and his team at the Texas Innocence Network have focused on a comment from an assistant prosecutor during a television interview this summer in which she talked about a previously undisclosed second weapon. But the district attorney later said she misspoke and intended to say ammunition was recovered. Appeals seeking to block the punishment were in state and federal courts as Newton's punishment date neared. Also, a petition for commutation was before the parole board. "I'm hopeful they'll have the same questions and concerns," Dow said. "The likelihood of getting any relief in any death penalty case in Texas is pretty remote, but on the other hand, this is a pretty unusual case." Adrian Newton's parents were among those imploring the parole board to spare their daughter-in-law. "Losing Adrian and the kids suddenly was devastating to us," Tom and Virginia Louis wrote. "We do not want to go through that again with Frances. ... We don't want to lost another family member." Prosecutors, however, stand by their case. "This is obviously as serious as it gets," said Joe Magliolo, a federal prosecutor who was an assistant district attorney prosecuting the case in 1988. "And if there was any question at all, everybody would want it resolved. But I just don't see it." Jurors also appeared to be decisive, deliberating about 2 hours on guilt and about 1 hour on punishment. Appeals lawyers and Newton blame much of that on her state-appointed defense lawyer, Ronald Mock. He has a history of capital murder clients winding up on death row and a checkered professional career. Mock is under suspension by the State Bar of Texas for disciplinary problems. Newton, who at the time was on three years probation for a forgery conviction for changing numbers on a check, said she ran errands the night of the slayings, then returned with a cousin to discover the bodies. The cheap .25-caliber handgun determined to be the murder weapon was found in a bag Newton placed in an abandoned house that belonged to her parents. Newton said she found it in a drawer at home and hid it to keep her husband from getting into trouble. Adrian Newton had a drug history, and the couple was having marital problems. The cousin with Newton when they arrived told police about the bag she saw Newton conceal. The blue dress Newton was wearing had possible gunpowder residue on it. The trace of nitrites, however, came from fertilizer rubbed on her dress by her daughter, who stayed with relatives during the day while she worked at a tax accounting office, Newton said. Her uncle had a large garden, where he used fertilizer, and toddler Farrah would have collected it on her shoes, she said. Attorneys have been unable to conduct additional tests because the clothing was contaminated when it was stored unprotected with other evidence, and because the initial testing destroyed that part of the fabric. 3 weeks before the deaths, Newton took out $50,000 life insurance policies on herself, her husband and her daughter. She named herself as beneficiary, and signed her husband's name. She said later that she didn't want her husband to know she had been saving money for the policies because he would have wanted the cash. After their deaths, she says at the urging of her insurance agent, she applied to receive the policy benefits. The next day she was arrested. She believes the real killer is or may be related a drug dealer named "Charlie" who was upset with her husband for not repaying a $500 debt. "He's not a mystery man," she said. "He's not a figment of my imagination. ... I know he was a concern of my husband's. "I didn't commit those murders," she added. "I didn't kill my family." ON THE NET----Frances Newton http://www.freefrances.org/ (source: Associated Press) ********************* Diamond's mom labeled fit for trial The mother of 2-year-old Diamond Alexander-Washington is competent to stand trial on charges of capital murder in the toddler's beating death a year ago, according to a medical expert. The medical opinion by Dr. John Sparks, a psychiatrist and medical director of Bexar County's Detention Health Care Services, was submitted Friday to 144th District Judge Mark Luitjen, who is presiding over the capital murder case of Kimberly Alexander, 26. Alexander is accused of beating her daughter on June 5, 2004. Although Sparks' opinion was submitted to the court, no formal ruling has been made on the competency question. The judge set a hearing for Oct. 7 to look into whether Alexander is considered to have mental retardation, which would disqualify her from the death penalty. Barring that determination, District Attorney Susan Reed has said the state will seek the death penalty if Alexander is convicted. "The (U.S.) Supreme Court passed a case last year, and that opinion says that if a person is mentally retarded you can't execute them," said Alexander's court-appointed defense attorney, Cornelius Cox. (source: San Antonio Express-News) ************************** Death could be sought for a 6th TCB member -- Prosecutors aim to know by Monday how to try alleged Edinburg murderer Hidalgo County prosecutors will decide by Monday if they will seek the death penalty against a sixth Tri-City Bomber gang member in connection with the deaths of six men in and around 2 homes on Monte Cristo Road on Jan. 5, 2003. Jorge "Choche" Norberto Martinez, 40, will be the fourth man to stand trial for capital murder in connection with the deadly pseudo-cop raid in Edinburg. However, prosecutors have not determined if they will seek life in prison or the death penalty, Assistant District Attorney Joseph Orendain said Thursday at a pre-trial hearing in District Judge Bobby Flores 139th state District court. Martinez is accused of helping to plan the raid and of driving subordinate gang members to the crime scene, according to testimony in prior trials. Flores said he was ready to try the case and asked Orendain and Martinezs attorney Ricardo Palacios to return to court at 9 a.m. Monday to set Martinezs court date. Orendain said he would meet with District Attorney Rene Guerra and Chief Felony Prosecutor Homer Vasquez to decide Martinezs possible punishment. The states decision on what punishment to seek affects jury selection. If they opt for the death penalty, prosecutors and Martinezs defense attorneys will interview each potential juror individually, a process that could take several weeks. Flores said he wanted to try the case before the end of the year. Of the 13 men indicted with capital murder in connection with the slayings, juries have already sentenced 3 men to death - Juan Raul Navarro Ramirez, 20, was sentenced in December; Humberto "Gallo" Garza, 31, was sentenced in March and Rodolfo "Kreeper" Medrano, 26, was sentenced Aug. 27. A 4th man indicted with capital murder for the Edinburg slayings, Robert "Bones" Gene Garza, 21, is already on death row for a separate multiple homicide in Donna that was tied to the Tri-City Bombers. Prosecutors also are seeking the death penalty against the gangs leader Jeffrey "Dragon" Juarez, 29, who lived in Sugar Land when the murders occurred but is accused of giving lower ranking gang members the approval for proceeding with the raid. Prosecutors had planned on trying Juarez after Medrano but on Wednesday, Juarezs court-appointed attorney withdrew from the case for health reasons. The judge presiding over Juarezs trial said he would now wait to try the case until Juarezs new attorney, Emilio Rodriguez Jr., was ready. For those whose possible punishment has not been determined, prosecutors will evaluate each defendants role in the murders to determine whether they will seek the death penalty. After the pre-trial, Guerra said he needed to go beyond their co-defendants statements, which is not enough evidence alone to prove a defendants guilt. "We are trying to figure out the alignment," he said. "We have 7 defendants left we have to worry about prosecuting. We are always open to negotiation. "The ball is in the defendants court. If they want to negotiate, they can always approach my staff if they have any reasonable options for us to consider." (source: The Monitor) FLORIDA: Brantley man guilty of 2 slayings----Jury to deliberate on life or death; uncle, another man killed in 2000 In Brunswick, a Brantley County man faces a possible death sentence after being convicted Friday of killing his uncle and another man during an ambush robbery 5 years ago in isolated woods. Lecester "Buddy" Woodall Jr., 31, of Hoboken was found guilty of murder and armed robbery charges in the Labor Day 2000 shooting deaths of his uncle, John Lavelle Lynn, and Robert Arthur VanAllen. A Glynn County jury began hearing testimony in the penalty phase of the trial about 2 p.m., shortly after convicting Woodall. Jurors were expected to begin deliberations on his punishment Friday evening, authorities said. Capital murder cases in Georgia are punishable either by death or life in prison without parole. The jury decides the penalty. The trial began Aug. 29 in Brunswick. Woodall was the 1st of 2 men charged in the case to stand trial. Lynn, 50, and VanAllen, 41, both of Hortense, were slain at a secluded railroad crossing in woods along Bladen Road in west Glynn County near the Brantley County line. The victims had been lured to the site by two men posing as stranded motorists, a Glynn County police investigation revealed. Lynn owned and operated an auto salvage company on Georgia 32 in Brantley. VanAllen was a friend of Lynn's as well as an employee of the wrecker service. Autopsies showed that Lynn died of a gunshot to the head, and VanAllen had been shot multiple times. Lynn was known to carry large amounts of cash with him. His wallet was missing when his body was discovered, police have said. A co-defendant, David Steven Wimberly, 26, is awaiting trial also on murder and armed robbery charges in the case. Wimberly, of rural west Brantley County, is Woodall's brother-in-law and regularly had stayed with him at his home, investigators have said. No trial date has been set for Wimberly, authorities said. (source: Florida Times-Union) LOUISIANA: Can justice be done in midst of a disaster? -- Evidence, records likely under water Hurricane Katrina uprooted half of all practicing attorneys in Louisiana and upended the state and federal legal system. The storm threatens to disrupt cases ranging from an assault charge against Michael Jackson to the hundreds of suits filed against Merck and Co. for its painkiller Vioxx. New Orleans is home to the Louisiana Supreme Court, the U.S. Court of Appeals for the 5th Circuit, and the U.S. District Court and U.S. Bankruptcy Court for the Eastern District of Louisiana, as well as the city's criminal courts building. The evidence room of the Orleans Parish Criminal Courts Building, a massive structure at the corner of Tulane Avenue and Broad Street, is believed to be under water. As the flooded streets of New Orleans are brought under the control of law enforcement, legal experts are trying to determine how they are going to prosecute cases and how thousands of defendants can get a speedy trial guaranteed to them under the Constitution. Evidence for an untold number of criminal investigations might be lost, along with records from hundreds of private law firms. Records from the Court of Appeals may be under water along with a handful of city, district, civil and circuit courts. Now, legal issues as basic as the constitutional right to a speedy trial are being discussed between judges in broken conversations on cellular phones. At emergency meetings in Baton Rouge, prosecutors and defense attorneys are debating how to alter laws that give judges authority only in stretches of Louisiana where courthouses have been destroyed. The objective is to enable judges to hear cases outside their jurisdictions. Louisiana Gov. Kathleen Blanco signed an executive order this week suspending deadlines for almost all state court proceedings and throwing out statutes of limitations. But legal experts say it will be difficult to get around constitutional issues not covered under the governor's order. Defendants must be put before a magistrate judge within 72 hours in Louisiana where it is determined if there is probable cause to hold them in custody or require bond. They must be formally arraigned within 60 days. Of the 8,000 prisoners transferred from flooded prisons, about 4,500 have not had charges filed against them, or they have a trial or an appeal pending, said Julie Cullen, director of the criminal division at the Louisiana attorney general's office. All of them have the right to a speedy trial, and time is running short. "There are the short-term concerns and we're dealing with that, but there are long-term ramifications in how we protect constitutional rights of individuals in the midst of a disaster," Cullen said. Temporary facility The state has set up a temporary facility near Baton Rouge that has been able to handle the defendants who must go before a magistrate. Yet the New Orleans infrastructure that supported myriad legal services, private and public, does not exist there, including things as simple as bonding agencies, said David Price, president of the State Association of Criminal Defense Attorneys. The state Supreme Court, the District Attorneys Association and other legal experts were drafting a series of proposals this week for an executive order that would allow Blanco to override or suspend some statutory requirements, giving the state breathing room, Cullen said. Those proposals could be on the governor's desk by early next week. Defense attorneys have played a part in crafting the proposals, but concerns remain for people who were already in jail, or who may have been arrested in the chaotic days after New Orleans' levees broke. "My concern is that this drags on for a month, 2 months, who knows," Price said. "People are no longer going to get their day in court, which is their right. At that point, they're just citizens sitting in jail." Members of the Supreme Court are meeting with district attorneys, the Louisiana attorney general and other experts to determine how to put defendants on trial outside of parishes where they were arrested. No one is making predictions on when the city will be habitable again, much less when a jury pool could be assembled. "There is an allowance for a change of venue, but that's typically the defendant asking for that," Price said. "The state could make the argument that it can't get a fair trial in New Orleans because there is no courthouse and no jurors. No one knows." Federal judges affected Hurricane Katrina did not limit the disruption to state courts. Laws that prohibit federal judges from doing court business outside their jurisdiction have handcuffed Louisiana's Eastern District judges. In the face of a catastrophe, Congress acted quickly to remedy that. The House unanimously passed legislation Wednesday that would allow federal courts to operate outside their jurisdiction in the event of a disaster and the Senate followed suit Thursday. President Bush could sign the changes into law as early as Friday. Talk of such legislation began in earnest after the Sept. 11 attacks. "The proposed legislation goes back a couple of years and was intended for use in an emergency," said Dick Carelli, spokesman for the federal courts administrative office in Washington. "Here's your emergency." Federal judges from Louisiana's Eastern District have scattered to 3 cities and were awaiting authority from the president. Hurricane Katrina did much more than destroy courthouses and make jurisdictional boundaries ludicrous. "There were about 16,000 dues-paying attorneys in Louisiana and 1/2 of them were in Orleans, Jefferson, St. Bernard and Plaquemines Parishes," said Frank Neuner Jr., president of the Louisiana State Bar Association. Up to 8 district attorneys offices were flooded or destroyed, said Pete Adams, president of the Louisiana District Attorneys Association. "There is going to be a big backlog, that is all that anyone can be sure of," Adams said. "I can't really guess when we will be returning to any sense of normalcy. We're not going to give up, though." For those in private practice, the return to normalcy may have to be found elsewhere, some attorneys said. Larry Arcell, 53, an attorney with the New Orleans firm Barker, Boudreaux, Lamy & Foley, left all the records behind in his downtown office. He is tracking down clients using his memory and the Internet in Houston, where he is staying. (source: Chicago Tribune) US MILITARY: Airman to enter plea in murder case The capital murder trial of a Robins Air Force Base airman reconvenes on Tuesday and a court-martial panel or jury deciding the case may require up to 6 weeks to reach a verdict, according to an Air Force legal official. Senior Airman Andrew Witt, 23, is expected to enter a not guilty plea Tuesday morning at the Bibb County Courthouse in Macon. Witt is charged with the premeditated murder of Senior Airman Andrew Schliepsiek and his wife, Jamie, at the Schliepsieks' on-base residence during the early morning hours of July 5, 2004. He is also charged with the attempted murder of Senior Airman Jason King. The trial was moved to the Macon facility from Robins to provide more space and seating capacity for legal teams, spectators and media. "Since the case was referred as a capital case, the only plea the court is authorized to accept is not guilty," said Col. Jeff Robb, the Warner Robins Air Logistics Center staff judge advocate. Robb said the trial - with the exception of jury selection - will be similar to a federal or state criminal proceeding. "There will be opening statements, presentation of evidence by the prosecution and defense, rebuttal evidence followed by closing statements," Robb said. "The court will then instruct jurors on the laws that apply and they will begin their deliberations." Up to 17 jurors or panel members could be empowered to decide Witt's fate. 12 is the minimum. "Fifteen primary and 30 alternate members have been selected by the court-martial convening authority," he said. Maj. Gen. Michael Collings, the Warner Robins ALC commander, is the convening authority in this case. Both the prosecution and defense will have unlimited opportunity to challenge potential jurors for cause. Each will have one preemptory challenge - to excuse a potential juror for no stated reason. "We will bring in all 15 primary members and if there are no challenges, 15 will be seated," Robb said. "If the number falls below 12, panels of three alternates will be brought in." All of the primary and alternate jury candidates are officers ranging in rank from first lieutenant to colonel. Witt could have requested at least 1/3 of the jurors be enlisted, but he has not chosen to do so, according to Robb. 7 members of the jury pool are drawn from Eglin Air Force Base, Fla. The remainder are stationed at Robins. "The people from Eglin were chosen in case there is a question of pre-trial publicity," he said. Tuesday's session will begin with presiding judge, Col. Thomas Cumbie, ruling on outstanding motions. Then Witt will enter his plea and the jury selection process will follow. Cumbie is from the U.S. Air Force Eastern Judicial Circuit at Bolling Air Force Base, Washington, D.C. "Jury selection will continue as long as necessary," Robb stressed. "The findings portion - the determination of guilt or innocence - will begin no earlier than Monday, Sept. 19. If there is a sentencing phase, it will not begin before Oct. 3. Of course that's premature since Airman Witt is presumed innocent." The military jury must come to a unanimous verdict of guilty on at least one of the murder charges before the death penalty is authorized. "That doesn't mean it will be imposed," Robb said, "only that it will be an option. If there is no unanimous verdict, the trial will proceed in non-capital fashion." Witt's defense team, led by well-known Colorado attorney Frank Spinner, apparently will not enter an insanity plea. "Of course Airman Witt's not guilty plea generally preserves the defense option to claim lack of mental responsibility," he said, "but the defense must give the prosecution notice and they have not done so. So an insanity defense is not expected." Witt, an avionics specialist in the 116th Air Control Wing at Robins, has been held in the Houston County jail since his July 5, 2004, arrest. The legal process began with an Article 32 hearing - the military equivalent of a grand jury proceeding - last November and continued with presentation of defense motions on April 5 and June 21. The accused has been in the Air Force since November of 2001. He was assigned to Robins in August 2002. Both Airman Schliepsiek and King were assigned to the 5th Combat Communications Group at Robins. Witt's defense team also includes Capt. Darren Johnson from Robins and Capt. Doug Rawald from Bolling. Maj. Vance Spath, chief circuit trial counsel also based at Bolling, will lead the prosecution. He will be joined by Maj. Richard Rockenbach from the same Bolling office and Capt. Scott Williams from Robins. The double murder trial is unprecedented in the more than 60-year history of the local military installation. (source: Macon Telegraph)