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)



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