Headlines, Human Rights, North America

RIGHTS-U.S.: Defence Wanting for Death Row Women

Rebecca Kessler

NEW YORK, Dec 17 2004 (IPS) - An inadequate defence by her court-appointed attorney makes Frances Newton’s story typical of many women on death row in the United States, says a report by the country’s largest civil liberties organisation.

Newton, a 39-year-old black woman, was given a 120-day reprieve by Texas Governor Rick Perry on Dec. 1, just two hours before her scheduled execution.

A shoddy defence during her 1988 trial led to a death penalty conviction that might have been avoided with adequate representation, according to her current lead attorney, David R Dow of the Texas Innocence Network (TIN) at the University of Houston. He came on as Newton’s lawyer several weeks before her scheduled execution to petition for clemency.

“Frances Newton’s case is really extreme,” said Rachel King, staff attorney for the capital punishment project of the American Civil Liberties Union (ACLU), and co-author of the new report, ‘The Forgotten Population: A Look at Death Row in the United States Through the Experiences of Women’.

“Frankly if she’d had a decent attorney she may have been acquitted,” King added.

In April 1987, Newton’s husband Adrian, 23, and their two children, Alton, 7, and Farrah, 21 months, were shot to death. The state charged the woman with their murders, allegedly committed to get 100,000 dollars in life insurance, and she was sentenced to death. Throughout her 16 years on death row she has maintained her innocence.

Ronald Mock, who had a record of losing capital cases, was the court-appointed attorney during her trial. Dow said Mock failed to conduct an independent probe into the murders or even to interview witnesses, and according to Dow’s TIN colleague Jared Tyler, Newton’s numerous requests to have Mock removed as her attorney were denied.

“Mr. Mock has never sat down with me and went over the case in depth at all,” Newton said at a September 1988 hearing, reported the ‘Houston Chronicle’ on Jul. 7.

At the time of the trial, neither the police nor Mock followed up on leads pointing to other possible suspects, says Dow. After 16 years those leads might well prove dry, but the lawyer told IPS he will try to follow them.

Such lack of quality legal representation for female defendants in capital cases is par for the course, according to the ACLU’s report, especially for poor women, who make up the vast majority of death penalty cases. When a defendant cannot afford an attorney, many states supply one at public expense through a public defender programme, or by appointing a private attorney.

“The biggest problem is that we’re not as a society willing to invest the kind of resources needed to put on a good defence. To do a good job is unbelievably expensive,” said King.

A proper investigation in a capital case can mean conducting 500-1,000 hours of research, hiring expert witnesses, and doing forensic testing, while court-appointed attorneys are rarely paid more than a few thousand dollars per case, she added.

As a court-appointed death penalty lawyer, according to Dow, “you basically have to set up a little triage operation from the day you’re appointed and decide what you’re not going to do” in preparing a defence. “It’s absolutely not adequate.”

Still, he added, the situation had improved since Newton’s trial, and minimum standards for death penalty lawyers’ education and training have been implemented in Texas, the state that leads the country in executions.

TIN is one of many such projects nation-wide, where law students, under the guidance of faculty and practising attorneys (in this case Dow and Tyler, the group’s staff attorney) investigate cases where prisoners claim innocence. They may represent defendants in court.

“I see no evidence of innocence,” Gov Perry said in a statement issued at the time of Newton’s reprieve. “However, I am granting the additional time to allow the courts the opportunity to order a retesting of gunpowder residue on the skirt the defendant wore at the time of the murders and of the gun used in the murders.”

Evidence in the Newton case was originally tested by the Houston Police Department crime lab, which has since been widely discredited by a laundry list of problems that include mishandling and loss of evidence and inadequate scientific procedures. Several convictions hinging on evidence examined by the lab have since been reversed.

Dow said his strategy will be to first re-test the forensic evidence (the gun, some bullets and Newton’s skirt), and then try to pursue the leads to other possible suspects that were not followed up before the trial, although he does not have a lot of hope the latter tactic will produce results.

Fifty women ranging in age from 22 to 73 now sit on death row across the United States, about 1.4 percent of the total death row population of around 3,500, according to the ACLU report, which was co-authored by the American Friends Service Committee and the National Clearinghouse for the Defence of Battered Women.

It examined the lives of 66 women, including the 56 on death row between April 2002 and December 2003 and the 10 that have been executed since 1976.

More than one-half of the women were victims of abuse during childhood and adulthood, the report found. This information, which can be a mitigating factor in a jury’s consideration of whether to impose the death penalty, was often not presented during trial.

One-fifth of the women said they had been victims of assault or sexual harassment while in jail, often at the hands of guards. The report suggests allowing more direct legal redress to such women, who now must first exhaust a prison’s grievance system, making them vulnerable to retaliation by guards they see each day.

Texas has put to death 336 of the 944 prisoners executed nationally since 1976, according to the website of the Death Penalty Information Centre.

But in the past year, appeals from four of its death row inmates have been heard by the U.S. Supreme Court. Each one challenged the fairness of the court proceedings by which the defendants were sentenced, and, in the three cases that have concluded, the high court reversed lower courts’ decisions.