The state of Texas is scheduled to execute Frances Newton on Sept. 14th for the April 1987 murders of her husband, Adrian Newton and children Alton and Farah Newton in Harris County. If executed, Newton would be the first African-American woman Texas has put to death since the state resumed executions in 1982.

Newton's case embodies core problems with the death penalty in the United States in general and in Texas in particular. Her trial counsel was egregiously incompetent, she has a strong innocence claim and her conviction rested in large part on the results of ballistics testing conducted by the now-discredited Houston Police Department's crime lab.

Furthermore, Newton has been denied effective representation at nearly every stage of her appeal and consequently, her case has never been thoroughly or independently investigated. In fact, on the very day her trial began, her attorney, Ron Mock, admitted that he could not provide the name of a single witness with whom he had spoken. Mock is well known in Texas death penalty circles; he has had more clients sent to death row than any other lawyer. Many of his former clients have been executed and he is no longer assigned death penalty cases because of his astonishingly abysmal record as an attorney.

Newton, who was 21 at the time of the crime, took out a life insurance policy on her husband, herself, and her daughter less than a month before the crimes were committed. This action led many to believe she killed the victims in order to collect life insurance benefits. Newton also was reportedly having marital problems with her husband which the state further concluded to be evidence against her. However, as Newton's current attorneys have pointed out, there is a complex and overwhelming array of facts and circumstances that call into question the integrity and accuracy of her conviction.

First, Newton was convicted of killing her seven-year old son Alton Newton although he was not covered by a life insurance policy. The state was not able to provide a viable motive for his death. She also allegedly killed her 20-month old daughter for an additional $50,000 in insurance benefits. While a problematic marital situation may serve as motive for Newton's husband's murder, the killing of her two children is still speculative and largely unexplained by the state.

Second, the Houston Police Department's crime lab, which conducted ballistics testing on the weapon the state believes was used in the murder, is now widely regarded as extraordinarily unreliable. Without the crime lab's ballistics report, it is extremely doubtful that Newton's case would even have gone to trial, much less resulted in a capital murder conviction and death sentence.

Third, the state presented conflicting evidence regarding the timing of the murders and the likelihood Newton was home at the time they took place. Based on what the state presented, it is highly possible that another individual could have been at the residence at the time of the shooting. The state's evidence does not exclude this possibility in any way.

Fourth, the state has not investigated the possibility that another suspect or suspects may have been involved in the murders. Police were in possession of information that Adrian Newton was known to be a drug dealer and was in debt to a supplier. Despite this information, apparently police never investigated the possibility that the deaths were drug-related.

Fifth, the only other physical evidence in the case was the presence of nitrates found on the lower part of the dress Newton was wearing. However, while the state argued that the presence of nitrates indicated gun powder residue, other possible sources include fertilizer and cosmetics. It has been established that Newton's toddler was exposed to fertilizer earlier that day. Furthermore, Newton's hands were tested for gunpowder residue the evening of the murders; none was found, despite the fact that gunpowder residue cannot be washed away or quickly removed from skin after a gun has been fired.

Newton was given a prior death sentence in December of 2004, however, Newton's clemency team took the unusual step of not asking the Board of Pardons and Paroles to recommend clemency in Newton's case, but rather recommended to Gov. Perry a 120-day reprieve so that more investigation can be conducted. They claimed that the evidence in her case was lacking and that her prior representation was shoddy. Gov. Perry agreed to the 120-day reprieve on the day of her Dec. 1 execution date. However, little has changed regarding the facts of the case and the state has set yet another execution date.

Please write Gov. Perry and the Board of Pardons and Paroles and ask them to spare the life of Frances Newton.

Last-ditch efforts to save inmate

Black leaders predict dire consequences if Frances Newton is executed tonight

Local black leaders warned Tuesday of divine and political repercussions if condemned killer Frances Newton is executed tonight in Huntsville. The warnings came during an emotional morning news conference at the Mickey Leland Federal Building downtown, during which U.S. Rep. Sheila Jackson Lee called on authorities to grant Newton a new trial. Jackson Lee, D-Houston, said she would also ask the nation's solicitor general to intervene in the case.

"The American nation values life," she said, "and Frances Newton deserves to have her life spared. ... It's not a handout that Newton should have her day in court again." Jackson Lee likened the last-minute effort to save Newton to Texans who "through affection and love stood last at the Alamo" and declared that, "we're standing for the life of Texas."

Newton, 40, is to be executed at 6 p.m. for the 1987 murders of her husband, Adrian, 23, and the couple's 7-year-old son and 21-month-old daughter to gain insurance benefits. She would be the third woman executed in Texas since executions were resumed in 1982 and the 13th killer executed this year. She also would be the first black woman put to death in Texas during that time.

Newton's chances to escape death by injection have narrowed to a last-minute appeal before the U.S. Supreme Court and an appeal to Gov. Rick Perry to grant a 30-day stay of execution. Last December, Perry granted Newton an execution-day stay that provided four months to retest evidence crucial to her case. In the past week, petitions filed with the Texas Court of Criminal Appeals, 5th U.S. Circuit Court of Appeals and the Texas Board of Pardons and Paroles have been rejected.

Texas Innocence Network attorneys David Dow and Jared Tyler, both University of Houston law professors, have centered their efforts to save Newton's life on claims that multiple pistols were seized as evidence the night of the killings. Those weapons, they contend, could have been switched during ballistics testing, thereby wrongly indicating that the gun Newton hid in a vacant house after the shootings was the murder weapon. Newton has said she removed the pistol from her apartment and hid it to keep her husband from getting into a violent encounter with drug dealers. Much of the evidence and testimony supporting their multiple-pistol theory, defense attorneys say, was developed after Newton's initial trial.

Assistant District Attorney Roe Wilson denies that more than one weapon was recovered. Tests on three occasions have identified the weapon Newton hid as the murder weapon, Wilson said.

On Tuesday, Jackson Lee called upon Perry to grant a stay so that issues related to the pistol and other matters can be sorted out. Last week, the Court of Criminal Appeals declined to consider the defense team's gun arguments, contending they already had been reviewed and discounted. Nation of Islam Minister Robert Muhammad said Tuesday that he had completed a week of fasting and prayer for "God to move hearts and minds for justice." Muhammad repeated the charge that Newton's first trial attorney, Ron Mock, provided inadequate counsel. Mock, whose career reached a recent low when the State Bar of Texas suspended him, failed to interview witnesses or perform other basic research in the case, appeals lawyers have claimed. The Court of Criminal Appeals, however, has determined Newton received adequate representation. "Mock," Muhammad said, "has his own wing on death row."

Noting that Houston and Texas had generated international goodwill by welcoming tens of thousands of Hurricane Katrina evacuees, he added that the state could "ruin that in one swoop" with Newton's execution. He warned, too, of divine retribution for what he deemed an unjust execution. "I fear for the state for what God might do," he said. "If the hurricane had traveled just 2 degrees west, it could have been here."

Divine repercussions aside, Ovide Duncantell, director of the Black Heritage Society, predicted GOP overtures to blacks could fall flat if Perry, a Republican, fails to act. "There will be more damage to the Republican Party," he said. SHAPE director Deloyd Parker urged Perry to exercise caution in going ahead with Newton's execution. "We believe she's innocent," he said. "But if you kill her tomorrow and you find out later that she is innocent, there's nothing you can do to undo it. "Think about that, governor. Think about it."

Woman set to die appeals to governor, top court

By Michael Graczyk - Fort Worth Star Telegram

The Associated Press - Wed, Sep. 14, 2005

HUNTSVILLE - The gun inside 7-year-old Alton Newton's blue knapsack was the focus of the last-minute legal maneuvering by appellate lawyers Tuesday trying to keep the slain boy's mother out of the Texas death chamber.

Frances Newton, 40, is scheduled to die today for the fatal shootings 18 years ago of Alton; her 21-month-old daughter, Farrah; and her husband, Adrian, 23. Newton would be the 13th prisoner executed this year in Texas but only the third woman -- and the first black woman -- since the state resumed capital punishment in 1982.

Newton, who denies involvement in the killings, spent Tuesday visiting with relatives at the Mountain View prison outside Gatesville where the state's 11 condemned women are held. Gatesville is about 140 miles northwest of Huntsville, where she will be taken if the execution proceeds.

Her attorneys awaited word from the Supreme Court, where they filed an appeal Monday after Texas courts, lower federal courts and the Texas Board of Pardons and Paroles rejected their arguments that Newton is not guilty. Her attorneys also asserted that evidence used at her trial was improperly destroyed, that the gun linked to the slayings was not the only weapon recovered by police, and that she has not been a problem inmate, disputing trial evidence that she would be a continuing danger and deserved to die.

They also asked Gov. Rick Perry to invoke his authority to issue a one-time 30-day reprieve. "It's distressing because there are so many questions in this case," Newton told The Associated Press in a recent interview. "And you'd hope, I hope, our court system would want to know the answers, other than just saying: 'Oh, we believe we're right in this.' "

Newton and a cousin found the three bodies on the evening of April 7, 1987. Her husband had been shot in the head, the two children in the chest. Newton acknowledges hiding a .25-caliber handgun in Alton's knapsack at an abandoned house. Ballistics tests showed that it was the gun used in the slayings, but her attorneys argued that it wasn't the same weapon Newton left there, that police actually recovered a second or third weapon, and the guns were switched.

Newton said she found the gun 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. Both had been engaged in extramarital affairs. Newton's cousin told police about the bag, which she saw Newton conceal.

Officers didn't record the serial number or any distinguishing features and when shown the weapon at Newton's trial said only that it "appeared similar," according to David Dow, one of Newton's appeals lawyers. "When the state says Newton can be connected to a gun that has a particular serial number, that's just a flat-out lie," Dow said.

Prosecutors have termed the argument a smoke screen. "The fact is, the gun that was the murder weapon was the gun she hid," said Roe Wilson, an assistant district attorney in Harris County. "It was bagged by police and tagged into evidence. There is a chain of custody. It was the only gun recovered."

In December, the parole board recommended a reprieve for Newton so new ballistics tests could be conducted on the gun, and Perry agreed about two hours before Newton could have been put to death. In March, new tests confirmed the earlier findings, and Harris County officials rescheduled her execution.

The circumstantial case also included evidence that the blue dress Newton was wearing carried possible gunpowder residue. She and her lawyers said the trace of nitrites came from fertilizer rubbed on her dress by her daughter, who stayed during the day with relatives who had a garden. Defense lawyers were unable to conduct additional tests on the dress because it was contaminated when it was stored unprotected with other evidence and because the initial testing destroyed that part of the fabric.

State will execute first black woman

The first black female to be executed in Texas will receive a lethal injection at 6 p.m. today. Frances Elaine Newton, 40, has spent the last 18 years on death row. She was convicted of murdering her husband and two children in Houston in April 1987. Prosecutors claimed she killed them to collect on a $50,000 life-insurance policy.

The Texas Board of Pardons and Paroles voted Monday in a 7-0 decision declining Newton's requests that the board recommend for Gov. Rick Perry to commute her death sentence to life in prison. The vote came two days before Newton's scheduled execution.

Rissie Owens, presiding officer of the Texas Board of Pardons and Paroles, said in a statement that each board member gave full consideration to Newton's clemency request. The board considered all the information submitted from any interested parties including prosecutors, family members and the public. He said Newton's claims of innocence were not substantiated.

"I wish that the courts and the parole board would have been a little less anxious to assume that everything that the state is saying is true," David Dow, University of Houston law professor, said. "The state is saying things that are not true."

Gov. Rick Perry granted Newton a 120-day reprieve on Dec. 1, 2004 on her scheduled execution day to allow pardons and paroles officials further investigation regarding the alleged murder weapon, a .25-caliber pistol. Dow has represented Newton since the summer of 2004. He said he did not believe Newton had access to the murder weapon, a fact he says the state has falsified.

The National Association for the Advancement of Colored People actively protested Newton's case at the governor's office, said Nelson Linder, head of the Austin chapter. He said he never once received any sort of response from state officials. NAACP protested the case on legal and moral grounds. "Given the fact that the evidence was not clear, and she did not have an effective council makes you question due process," Linder said. "Race always plays a factor in any crime in America. It is very troubling." Dow refused to comment on the issue of race in the sentencing.

Newton's mother, father and three siblings will be present at the execution as well as her former husband's two cousins.

According to Michelle Lyons, a spokeswoman for the Texas Department of Criminal Justice, Newton did not request a last meal, but one will be provided if she decides that afternoon to have one. Dow said when he spoke to Newton Tuesday morning, she was hopeful. But her lawyer said he knew time was running out. Since Texas reinstated the death penalty in 1982, the state has executed 348 people. Newton will be the third female and first black female.

Set to kill Frances Newton

Horror of the Texas killing machine

FRANCES NEWTON has been sitting on Texas’ death row for the past 17 years--for a crime that she very likely did not commit. But if Texas Gov. Rick Perry gets his way, Frances will be put to death on September 14--the first African American woman to be executed by the state of Texas since the Civil War. Accused of shooting her husband Adrian and two children in 1987, Frances was railroaded onto death row on the flimsiest of evidence--by a system that couldn’t be bothered to look for the truth.

As the Austin Chronicle recently put it, “There is no incontrovertible evidence against Newton, and the paltry evidence that does exist has been completely compromised. Moreover, her story is one more in a long line of Texas death row cases in which the prosecutions were sloppy or dishonest, the defenses incompetent or negligent, and the constitutional guarantee of a fair trial was honored only in name.”

Police and prosecutors--in addition to Frances’ own incompetent trial attorney--ignored her claim that her family was murdered by a drug dealer that her husband owed money to. Despite the fact that an anonymous caller the day after the shooting gave a description and license plate number of a truck parked in the driveway of the Newton home on the night of the shooting, police never followed up on the lead. Instead, they claim Frances was after life insurance money--and made her their only suspect.

The physical evidence against Newton is full of holes. “[T]here wasn't any physical evidence at all on Frances Newton,” her new attorney David Dow told Democracy Now! “There wasn't anything at all on her clothes. There wasn't anything at all in her car. This is somebody who by the state's theory would have had to have killed three people with perfect marksmanship, and then completely clean the crime scene in such a way that investigating authorities could find no physical evidence tying her to the scene at all, in 20 minutes.”

Because of the numerous inconsistencies in the case, last December, Frances was granted a 120-day reprieve for the evidence to be re-examined. But recent testing on her skirt, which prosecutors claim places her as the shooter at the scene of the crime, couldn’t be done--because original forensic tests had not only destroyed the evidence, but Harris County officials had improperly stored the skirt by sealing it inside a bag, together with items of bloody clothing, making it worthless as evidence.

While police claim that ballistics tests confirm that a gun they say Frances had in her possession was used as the murder weapon, Dow says that police recovered at least two similar pistols during their investigation of the murders--a fact that police and prosecutors never revealed to Newton’s original lawyer.

During an interview earlier this year with a Dutch reporter, Assistant District Attorney Roe Wilson confirmed that “police recovered a gun from the apartment that belonged to the husband,” but added that, “[It] had not been fired, it had not been involved in the offense...It was simply a gun [Adrian] had there; so there is no second-gun theory.” Wilson later claimed to have “misspoken,” saying that there was no second gun recovered. But at least two separate affidavits from police investigators allude to the recovery of a second gun--though the Harris County Sheriff’s Department has refused to turn over additional reports to Frances’ lawyers.

What’s more, in Harris County, where Frances Newton is from, the police crime lab is notorious for botching evidence in death penalty cases. Last year, Houston’s chief of police was forced to call for the state to delay all executions in cases where evidence was used that had been processed at the Harris County crime lab--after hundreds of previously missing boxes of evidence were found that pertained to more than 8,000 criminal cases. More recently, according to Human Rights Watch, problems at the crime lab have included missing evidence, defective DNA analysis and inaccurate ballistic analysis.

As Dow recently asked, “Is it plausible to think that the Houston Police Department ballistics lab mixed up the weapons? 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.”

Like many other inmates on death row, Frances Newton’s defense was not just inadequate, but wholly incompetent. She was originally “defended” by Ron Mock, a lawyer so outrageously inept that he was later barred from taking capital cases in the state of Texas--and has since been suspended from practicing law until the year 2007. “Death Row Mock,” as he was nicknamed--because he never won an acquittal in a capital case, and had at least 16 clients sentenced to death--failed to call any witnesses or do any investigation in Frances’ case. When Frances and her parents begged the trial judge to let her change attorneys, the judge agreed--but refused to grant a continuance, leaving he with no choice but to stick with Mock.

American Bar Association President Michael Greco has also written to Gov. Rick Perry and the Texas Board of Pardons and Paroles to request that Frances’ execution be stayed, citing Mock’s gross incompetence as just one of the compelling reasons. But over the weekend, the Texas Court of Criminal Appeals rejected Frances’ latest motion, saying that the evidence of a second gun was not “new.” The court also has rejected claims that Frances received inadequate representation in her first trial, and that the prosecution had destroyed and contaminated crucial evidence

Speaking out for Frances as her execution date approached were Tom and Virginia Louis, the parents of Frances’ murdered husband Adrian. “We do not wish to suffer the loss of another family member,” they wrote to the Texas Board of Pardons and Paroles.

Frances’ mother, Jewel Nelms, was recently admitted to the hospital when the stress of her daughter’s approaching execution put her health in jeopardy “I would ask the Governor and the Board of Pardons and Paroles to look at the facts in the case and make a true and fair judgment--like they would want someone to do if it was their child,” Jewel recently told Campaign to End the Death Penalty activist Lily Hughes.

Despite her poor health, Jewel pledged to continue fighting for Frances as the execution date loomed. “I’m hoping this is the evidence that’s going to get us back in the courts, since we have enough evidence now to know that there are things that are hidden that should have been brought out in the beginning,” she said. “I know for a fact that if the jury had known about a second gun, the verdict wouldn’t have come out like it did...

“Everybody is really disappointed in our system here in Houston, and knowing that they’ve hidden things for all these years is really kind of scary. Because I don’t think they just singled out Frances. I would like very much to ask: why did they feel the need to hide things? That says a lot about our system...It makes me think maybe they’ve been killing people that they could have saved, because they were wrongfully convicted--and that is what they are trying to do to my daughter.”

Women on Death Row - Frances Elaine Newton

Date of Offense - April 7, 1987

Age at Time of Offense - 21

Prior Occupation - Accounting

Education - 12 years

Prior Prison Record - Newton was given a concurrent 3-year sentence stemming from a probated forgery conviction in February 1986. Newton's probation was revoked upon her capital murder conviction.

Details of the Crime: Newton was convicted in the April 1987 slaying of her husband and children for insurance money. Killed were her husband, Adrian, 23, her son, Alton, 7, and daughter, Farrah, 21 months. All were shot to death with a .25 caliber pistol that belonged to Newton's boyfriend. Newton and her husband had separated about a month prior to the killings.

Motive: In March 1987, Newton took out $50,000 life insurance policies on Adrian, Farrah and herself. A policy already existed on Alton's life. Newton admitted taking a gun with her to her husband's apartment on the night of the killings, but she said she took it for protection and that her family members were alive when she left.

Newton filed insurance claims on April 21, 1987, and was arrested and charged with capital murder the next day.

Without Evidence: Executing Frances Newton

Another Texas death row case marked by official carelessness, negligence, and intransigence

By Jordan Smith - Austin Chronicle

Sept. 9, 2005

Unless the Texas Board of Pardons and Paroles and Gov. Rick Perry act to stop it, on Sept. 14 Frances Newton will become only the third woman executed by the state of Texas since 1982, and the first black woman executed since the Civil War.

Unique in that historical sense, in other ways the Frances Newton case is painfully unexceptional. For there is no incontrovertible evidence against Newton, and the paltry evidence that does exist has been completely compromised. Moreover, her story is one more in a long line of Texas death row cases in which the prosecutions were sloppy or dishonest, the defenses incompetent or negligent, and the constitutional guarantee of a fair trial was honored only in name.

As Harris Co. prosecutors tell the story, the now 40-year-old Newton is a cold-blooded killer who murdered her husband and two young children inside the family's apartment outside Houston on April 7, 1987, by shooting each of them, execution-style, in order to collect life insurance. Newton had the opportunity, they argued during her 1988 trial, and a motive – a troubled relationship with her husband, Adrian, and the promise of $100,000 in insurance money from policies she'd recently taken out on his life and on the life of their 21-month-old daughter Farrah. And she had the means, they say: a .25-caliber Raven Arms pistol she had allegedly stolen from a boyfriend's house.

To the state, it is a simple, open-and-shut case, which requires no further review. "Her case has been reviewed by every possible court," Harris Co. Assistant District Attorney Roe Wilson told the Los Angeles Times in November. "She killed her two children and her husband. There is very, very strong evidence of that."

Yet despite Wilson's insistence, Newton's case isn't simple at all – and such "evidence" as there is, is far from strong. "The State's theory is simple, and it is superficially compelling," attorney David Dow, head of the Texas Innocence Network at the University of Houston Law Center, argued in Newton's clemency petition, currently pending before the Board of Pardons and Paroles. "As we will see, however, appearances can be misleading."

From the beginning, Frances Newton has maintained her innocence. She has also offered a plausible alternative theory of the crime – a theory that neither police, prosecutors, nor Newton's own trial attorney, the infamous and now suspended Ronald Mock, have ever investigated. Newton and her defenders contend that Adrian, Farrah, and 7-year-old Alton were likely murdered by someone connected to a drug dealer to whom Adrian owed $1,500. The alternative theory has much to say for it – among other things, it explains the lack of physical evidence connecting Newton to the bloody murders.

Lingering questions about the physical evidence against Newton prompted the Texas Board of Pardons and Paroles to recommend, and Gov. Rick Perry to grant, a 120-day reprieve for Newton on Dec. 1, 2004 – the day she was last scheduled for execution. Although Perry said he saw no "evidence of innocence" – legally, an oxymoron – he granted the four-month stay to allow for retesting of evidence contested by Newton's defense, including nitrite residue on the hem of her skirt and gun ballistics evidence.

But testing on the skirt proved impossible, because the 1987 tests had destroyed the nitrite particles, and Harris Co. court officials had stored the skirt by sealing it inside a bag together with items of the victims' bloody clothing – thereby rendering it worthless as evidence. The second round of ballistics testing, on the other hand, supposedly confirmed a match between the gun prosecutors say Newton used and the bullets that killed her family. However, that match may be fundamentally undermined – because there is no certain connection between the gun and Newton.

According to Dow, it appears that police actually recovered at least two, and perhaps three, .25-caliber Raven Arms pistols during their investigation of the murders – conflicting evidence that neither the police nor the prosecutors ever revealed to Newton's defense. Dow argues that it is virtually impossible to know whether prosecutors have been truthful in claiming that the gun that Newton admits to hiding on April 7, 1987, was the murder weapon. "How many firearms were recovered and investigated in this case and who owned them?" Dow asks in a supplemental petition filed with the BPP on Aug. 25. "How many records have been withheld from Newton's attorneys throughout this case?"

In short, there is now even more doubt about Newton's guilt than there was when she was granted the stay – distressing Newton's many defenders, among them Adrian's parents, two former prison officials, and at least one of the jurors who heard Newton's case. "We never wanted to see Frances get executed," Adrian's parents Tom and Virginia Louis wrote to the BPP on Aug. 25. "When the trial occurred, nobody from the [DA's] Office ever asked ... our opinion. We were willing to testify on Frances' behalf, but Frances' defense lawyer never approached us," they continued. "We do not wish to suffer the loss of another family member."

A Bloody Crime

In the months before the murders, Frances and Adrian Newton were having marital problems. They were each involved in extramarital relationships, and Adrian was using drugs. In an Aug. 30 Gatesville prison interview, Newton told me that in addition to smoking marijuana, Adrian had developed a cocaine habit. "He had told me he was using cocaine, but I'd never seen that, but I saw the effects of it," she recalled. "He was home later, he was irritable, less responsible."

But she and Adrian had been together since she was a girl, and she was determined to work things out. That was on her mind on the afternoon of April 7, 1987, when she and Adrian sat down and talked. "We had decided that we were going to get through this together," she said. Adrian insisted that he wasn't using anymore, so when they were done talking and Adrian went into the living room "to watch TV ... I decided to be nosy and see if he was being honest," she recalled. Quietly, she opened the cabinet where he kept his stash.

"That's when I found the gun," she said. Newton said she immediately recalled a conversation she'd heard earlier that day, between Adrian and his brother, Sterling, who'd been staying with the family. "I couldn't hear real close, but it sounded like they'd been in some trouble," she said. "I thought I'd better take [the gun] out of there because I didn't want it to be in the house ... I didn't want him to get into any trouble." She removed the gun, placed it in a duffel bag and took it with her when she left the apartment around 6pm to run some errands, she says. Newton says it was the last time she saw her family alive.

At 7pm, after a couple of errands, Newton arrived at her cousin Sondra Nelms' house, where the two chatted and decided to return to Newton's apartment. As Newton backed out of the drive, she saw the duffel on the back seat and realized she needed to hide it. With Nelms watching, Newton retrieved the bag and walked next door into a burned and abandoned house owned by her parents, and there (as both women later confirmed), she left the bag.

The women arrived at the apartment around 8pm, and didn't immediately realize that anything was wrong. Newton thought Adrian was napping – until she saw the blood. "As Frances walked around the couch and saw his upper torso, she immediately screamed and bolted to the children's bedroom," Nelms said in an affidavit. "Frances began to frantically scream uncontrollably. I could not calm her down enough to elicit the apartment's address."

Newton says she was shocked and dazed, but gave police as much information as possible – including the fact that she'd just removed a gun from the house. She told police about Adrian's drug habit, and that he owed some money to a dealer – which Adrian's brother, Terrence, corroborated, telling police he knew where the dealer lived. Police never pursued the lead. "To your knowledge, was the alleged drug dealer ever interviewed by anyone in connection with this case?" Newton's attorney asked Sheriff's Officer Frank Pratt at trial. "No," Pratt replied.

A bullet remained lodged in Adrian's head, meaning that the blood and brain matter would have blown back onto the gun and shooter – confirmed by a trail of blood found in the hallway. Police found no trace of residual nitrites (gunshot residue) on Newton's hands, nor on the long sleeves of the sweater she was wearing. They collected the clothing she'd worn that day. There was no blood, nor any trace of blood, on any of the items.

Which Gun?

The next day, April 8, according to trial records, police supposedly confirmed that the gun they had retrieved from Newton's duffel bag in the abandoned building – at her direction – matched the murder bullets. Yet Newton was not arrested until more than two weeks later. Newton says that Harris Co. Sheriff's Sgt. J.J. Freeze told her that police had actually recovered two guns; in a sworn affidavit, Newton's father Bee Henry Nelms says Freeze told him the same thing and added that Newton would "eventually be released." Nonetheless, Newton was arrested two weeks later – after she filed a claim on Adrian and Farrah's life insurance policies – and charged with the capital murder of her 21-month-old daughter.

The state's primary evidence against her was elementary: Newton had filed for insurance benefits, and the Department of Public Safety forensic technicians had detected nitrite traces near the hem of Newton's long skirt – although they couldn't say with certainty that the nitrites were not her father's garden fertilizer transferred earlier that day from the hands of her toddler daughter. For physical evidence, the state relied primarily on the supposed ballistics match to the gun Newton had hidden.

Yet in court Freeze was somewhat vague: "I believe we talked about two pistols," he testified. "I know of one for sure, and there was mention of a second one that Ms. Newton had purchased earlier."

There are serious questions about the prosecutors' timeline, which would have required Newton somehow to murder her family, clean herself of any and all blood traces and gunshot residue, and drive to her cousin's house – all in less than 30 minutes. And since her 1988 conviction, the question of a second gun has haunted Newton's case. The ballistics evidence was increasingly suspect in any case because of the recent history of the Houston PD crime lab, which has been repeatedly charged with incompetent, shoddy work, resulting in a number of exonerations and the wholesale discrediting of the lab, which remains under investigation. The lab's clouded reputation was one factor that prompted Gov. Perry to accept the BPP's recommendation to grant Newton a reprieve last winter.

Although subsequent testing supposedly confirmed the ballistics match, the search for the second gun continued. And in June, Dow argued in Newton's clemency petition, the truth finally began to leak out, and from the most unlikely place: the Harris Co. District Attorney's Office. During a brief videotaped interview with a Dutch reporter, Assistant DA Roe Wilson inadvertently confirmed the existence of a second gun. "Police recovered a gun from the apartment that belonged to the husband," Wilson acknowledged. "[It] had not been fired, it had not been involved in the offense, " she continued. "It was simply a gun [Adrian] had there; so there is no second-gun theory."

Wilson and her boss, DA Chuck Rosenthal, quickly retracted her admission. Wilson told the Houston Chronicle that she'd simply "misspoken," and Rosenthal accused Dow of fabricating the idea of a second gun "out of whole cloth." "I'm very clear," Rosenthal told The New York Times. "One gun was recovered in the case." On Aug. 24, the Court of Criminal Appeals agreed, dismissing Newton's most recent appeal. "The evidence in this case was more than sufficient to establish [Newton's] guilt," Judge Cathy Cochran wrote. "The various details that [Newton] suggests her trial counsel should have investigated in greater detail do not detract ... from the single crucial piece of evidence that concerns her: she disposed of the murder weapon immediately after the killing."

Dow and his University of Houston law students persisted, and late last month may have succeeded. In August, Harris Co. investigators provided testimony that police may have recovered at least two identical .25-caliber Raven Arms pistols. In separate affidavits, two police investigators recall tracing firearms recovered in connection with the murders. Officer Frank Pratt told one of Dow's students that he was assigned a gun found in the abandoned house, which he traced to a purchase by Newton's boyfriend's cousin at a local Montgomery Ward. He also discovered, he told student Frances Zeon, that the purchaser had also bought a "second, identical gun"; but he didn't follow up on the second gun, because "he felt there was no need to do so." Pratt said he'd written up a report on the gun – a report Newton's attorneys have never seen.

However, Newton's attorneys do have a police report written by Detective M. Parinello, who reported he had traced yet another firearm recovered in connection with the case to a purchase from Rebel Distributors in Humble, Texas, which he said also ended up with Newton's boyfriend. "The question arises: what recovered firearm was ... Pratt investigating?" asks the clemency petition. "Counsel does not have access to the Harris Co. Sheriff's Department's records in this case. A request made directly to that institution for all records in connection to its investigation of this offense was rejected."

From all this conflicting yet incomplete gun evidence, it seems reasonable to surmise that there is no way to know which gun was in fact the murder weapon, or which gun was delivered for ballistics tests in 1987 or this year. Since the prosecution relied so heavily on a weapon that Newton herself had delivered to them, the new evidence discovered by her attorneys completely undermines her conviction.

At press time, Harris Co. Sheriff's Office spokesman Lt. John Martin was not able to reach Parinello or Pratt for comment but said that a captain who worked the Newton case had said there was only one gun recovered during the investigation. Harris Co. DA Chuck Rosenthal reiterated that, "as far as I know" there was only one gun recovered in the case. However, he said that even if investigators had recovered multiple firearms, and even if each were the same brand and caliber, the fact remains that the weapon investigators recovered from the abandoned house, which was immediately "tagged" and "tested," matched the bullets recovered from the victims. "Let's say, for conjecture's sake, that you ran down 50 or 100 guns, all associated with the case," he said. "The fact [is] that only one fired the bullets and that we know where that gun came from."

Criminal Defense

As in many Texas capital cases, a large part of the problem with Newton's appeals is that her court-appointed trial attorney, Ron Mock, never actually investigated her case. If he had, perhaps he would've followed up the drug dealer lead or Freeze's reported comments about a second gun. Newton and her parents implored the trial judge to allow her to change attorneys, and Mock admitted to the judge that he hadn't talked to any prosecution witnesses, nor had he subpoenaed any defense witness. The judge granted the motion to remove Mock but he declined a continuance, leaving Newton little choice but to go to trial with Mock. "It was stunning," she told me. "[Mock gets on the stand and] says, 'I don't know anything,' and for the judge to just dismiss it ... it was stunning." (Mock has since been brought before the State Bar's disciplinary board at least five times on various charges of professional misconduct, for which he has been fined and sometimes suspended; he is currently suspended from practicing law until late 2007.)

The Harris Co. prosecutors' defense of the conviction has also worn thin, especially given Roe Wilson's supposed "misstatement" about the second gun. To Newton's mother, Jewel Nelms, Wilson's admission is no mistake. "I've known all the time that there was a second gun," she told Houston's KPFT radio last month. "So I want to say again, to Roe Wilson, I thank you ... very much for letting us know, indeed, that there's somebody down there that knows about the second gun and was willing to talk about it – even though I know it wasn't her intention to do it."

Newton's clemency petition is still pending before the Board of Pardons and Paroles. On Monday, Sept. 6, her attorneys filed a petition with the state district court in Houston and the Court of Criminal Appeals, claiming that the state's failure to disclose evidence of a second gun violated her right to due process. At press time, Gov. Perry's office had received more than 4,000 letters, faxes, e-mails, and postcards regarding Newton's impending execution – most imploring Perry to commute her death sentence to life in prison. Letters about Newton's bid should be addressed to: The Honorable Rick Perry, Office of the Governor, PO Box 12428, Austin, 78711-2428; and to Chairwoman Rissie Owens, Texas Board of Pardons and Paroles, Executive Clemency Unit, PO Box 13401, Austin, 78711.

FreeFrances.org

Frances Elaine Newton could soon be the first African American woman executed in modern Texas history despite resounding questions of whether she is guilty and whether she received a fair trial.