JUAN GONZALEZ: This is Roe Wilson.

ROE WILSON: There’s no second gun theory. The police recovered a gun from the apartment that belonged to the husband. It was — it had not been fired. It was not involved in the offense. It was simply a gun he had there.

AMY GOODMAN: Texas leads the nation in the number of executions performed since the moratorium on capital punishment was lifted in the 1970s. Almost half the people on death row in Texas are African American, though only 12% of the population is. In Harris County where Frances Newton is from, the police crime lab is notorious for botching capital cases.

JUAN GONZALEZ: Another hurdle in Newton’s case was her state-appointed attorney. She was originally represented by the infamous defense attorney Ron Mock, who lost so many capital cases that he is known as “Death Row Mock”. At least 16 of Mock’s clients have gone to death row, and he has never won an acquittal in a capital case. He has been suspended from the bar twice. A colleague in Frances Newton’s case says Mock told her that he had not thoroughly examined the evidence. In another high profile case, Mock is known to have fallen asleep while defending Shaka Sankofa, or Gary Graham, in court. This report from the Committee to Free Frances Newton looks at Mock’s role in that case.

NARRATOR: Gary Graham had no money to hire a powerful lawyer, and Texas, unlike other states, has no system of public defenders. Graham’s case ended up with lawyer, Ron Mock.

INTERVIEWER: Why didn’t you go and talk to those eyewitnesses?

RON MOCK: Because I made a decision at the beginning of that trial that I was not going to use those eyewitnesses.

INTERVIEWER: But by leaving them out, you surely left him defenseless. I mean, Gary Graham was defenseless without them.

RON MOCK: No way. No way.

NARRATOR: Today Mr. Mock is a well-heeled Houston lawyer. 20 years ago, however, he made a living taking a lot of death row cases. And the only way, you know, to have a lot of cases is to do very little on each one.

INTERVIEWER: You obviously didn’t believe in the man’s innocence, did you?

RON MOCK: Bull****, I did not make a determination of whether or not he was guilty. I never have done that. If I ever do that, I need to turn in my goddamn bar card.

NARRATOR: According to this affidavit we’ve obtained, sworn by Mock’s own private investigator at the time, Mr. Mock started from the premise that his client was guilty, therefore not worth wasting time and resources on.

AFFIDAVIT OF INVESTIGATOR: [Read] I remember that from the first, Ron Mock insinuated that Gary was guilty, because we assumed Gary was guilty from the start, we did not give his case the same attention we would routinely give a case.

INTERVIEWER: Did Gary Graham get a defense?

DICK BURR: No. No.

NARRATOR: The lawyer who inherited this case in 1993 is absolute. Dick Burr points to the court record: Question after question from Ron Mock at Gary Graham’s only trial, identifying Graham effectively as the killer.

DICK BURR: He would have done better defending himself than having the lawyer who represented him represent him.

NARRATOR: So crucial witnesses were never heard in court, or the evidence, too. And the trial itself was tainted by dubious defense. Three jurors have sworn affidavits — we have copies of them — saying they would not have voted to convict Gary Graham if they knew then what we have discovered now.

JUROR 1 AFFIDAVIT: [Read] I would not have been able to convict Gary Graham on that evidence. I would have voted not guilty. I cannot speak for the other jurors, but I would have had a serious doubt about him being guilty.

JUROR 2 AFFIDAVIT: [Read] I would be in favor of delaying the execution until a jury can hear all of the evidence at the same time.

AMY GOODMAN: A look at the infamous defense attorney, Ron Mock. In a few minutes, we’ll speak with the attorney for Frances Newton, but right now, we turn to Frances Newton herself on videotape. The following comments come from two interviews that she did with Dutch TV.

FRANCES NEWTON: There are so many things that I don’t know and I don’t have answers to, but there are some things that I do know, and that I know that if the jury knew that they would have come to a different decision. The issue with the ballistics and the gun, they would have found out that the shell casings found there didn’t match the weapon that they’re saying is the murder weapon. That still hasn’t been brought up in any of the court hearings, you know, and that’s a major — that’s something I didn’t know, but that one of the attorneys working on the case now told me about, that — and those are like fingerprints. It’s something that wasn’t brought up in trial, you know, and I think that the jury should be able — should have been able to hear that.

Mock has already said he was tired, he didn’t want to take the case. So he didn’t even look — I don’t even think he looked at the police report, you know. One of my neighbors said they heard gunshots at 7:30. Why weren’t they brought to testify in trial? I just saw that in the clemency report, you know? I never knew that. That person should have been brought to trial to testify. That was something the defense was supposed to do and never did.

What I know is that Sergeant Freeze told my father when he came to get me from my parents’ house that there were two guns in the state’s possession, and the gun that I had wasn’t the murder weapon. He told my father I would be back for that reason. Ron Mock, when we first — when I was first arrested and began going to court, he told us that there were two guns in the state’s evidence and the gun that I had wasn’t the murder weapon. As far as the ballistics tests coming back, saying that the gun in the state’s evidence is the murder weapon, I don’t know. You know, it may be, but what I know is that the gun I had the night that I — the day that I left my apartment is not the murder weapon.

You know, I had heard Adrian and his brother talking earlier that day, and they had mentioned something about some trouble, and Adrian had told me he had — was quit using drugs. And so I looked in the cabinet, and I was just trying to confirm that he was telling me the truth about the drugs. And so, I looked in the cabinet where he normally kept drugs, and there wasn’t any in there, but there was this gun there, and it was unfamiliar to me. And so, hearing his conversation earlier with his brother, Sterling, I took it.

At that time I know that my husband owed money to this guy he was selling drugs for. The guy was not a figment of my imagination, you know? That was real. That was going on. You know, and it had my husband so concerned at times. Sometimes we would come home, and Alton would come out off his room, and say, “Mom, dad’s sleeping under his bed.” You know, under his bed. We wouldn’t see his car anywhere, but he would be under the bed asleep. So, that was something that was going on and, of course, when I find out that my husband and children were murdered, that was my first thought.

Adrian was a very loving person, sort of easily led by his older brother. But he was a very loving person. I had my first child early, and my parents were very disappointed in me, but they said, “Okay, this happened. Don’t make the mistake again,” you know, and encouraged me to continue being a teenager, because I was a teenager. But at the same time they helped me to be a good mother to my son. And Adrian’s mom and dad were very supportive, as was he.

INTERVIEWER: It must have been tough, so young.

FRANCES NEWTON: You know, it really wasn’t, because I had my big sisters and my big brothers, and so my son had all these aunts and uncles around and grandparents. It really wasn’t tough. I mean, and I don’t say that to encourage teenage pregnancy. I think that I was very blessed to have the support that I did.

AMY GOODMAN: Death row prisoner Frances Newton, speaking earlier this year. She would be the first African American woman executed by the state of Texas since the Civil War, if she is not granted a stay before her execution date of September 14. We go now to one of Frances Newton’s attorneys, David Dow, of the University of Houston Law Center. Welcome to Democracy Now!

DAVID DOW: Thank you for having me.

JUAN GONZALEZ: I’d like to begin, David Dow, Frances Newton was — she’s 40 now, that would make her 23 when she was initially arrested. She has been on death row now for 17 years. What’s the state of the case right now, and what are your hopes in the next few months?

DAVID DOW: The state of the case right now is that late yesterday afternoon, the state courts ruled against us on the petition that we had filed in state court. That was the first legal document where we had raised the issue that you all alluded to a moment ago, involving the acknowledgment by the prosecutor that police recovered a second gun, at least one additional gun, when they were investigating this crime. The state court didn’t even address that issue at all. We currently have pending a clemency petition in front of the Board of Pardons and Paroles. And I expect that we’ll be filing something in federal court sometime in the middle of next week.

AMY GOODMAN: What is the key issue that you feel needs to be raised right now for people to understand about Frances Newton?

DAVID DOW: Well, I think that there are really three key issues, and two of them are more important legally than the third, even though that’s — that’s ironic, because the issue that I think people need to understand that we’re certainly including in everything that we file but that is very difficult to raise at this stage of her case is simply the fact that she’s innocent and the fact that there isn’t any evidence that suggests that she was guilty.

Essentially, the state had three pieces of evidence at her trial. It had the motive evidence, which was the claim that she had purchased life insurance and then killed her family in order to collect that money. And it had two pieces of physical evidence; one piece of physical evidence was the presence of nitrite particles on the lower portion of the skirt that she was wearing on that night. And nitrite particles can come from gunpowder residue. And then the final piece of evidence was the gun. The state claimed that the gun that Frances Newton took out of the house, the gun that you just heard her talking about, was the murder weapon. Those are the three pieces of evidence.

When we investigated the case, the first thing when my office, Jared Tyler and I, started to investigate the case, the first thing that we realized was that if you simply built a timeline, Frances Newton didn’t have time to commit the crime. We figured that even if you were the most generous to the state’s version of what had happened when, she had a total of 20 minutes. Now, 20 minutes is not very long to kill three people, and entirely eliminate any physical evidence that connects you to the crime. What do I mean by that? I mean that when the police arrived at the scene, they did an atomic absorption test on her hands, and there was no gun powder on her hands. There was no evidence that she had fired a weapon. There was no gunpowder residue on her sweater, which is where, of course, you would expect to find it if somebody was holding a handgun and firing it.

The crime scene we noticed, was bloody, because there was a blood trail that went from the spot where Frances’s husband, Adrian, was killed back into the room where the bodies of the two children were found. What that meant was that either the murder weapon or more likely the murderer was covered with blood. Adrian Newton was shot at point blank range. And there’s an entry wound but no exit wound, and so that means that all of the — all of the blood and brain matter came back out of that entry wound and got on the weapon and probably got on the shooter, as well. And there’s a trail that leads from him back to the children.

Well, there wasn’t any physical evidence at all on Frances Newton. 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, you know, to the scene at all, in 20 minutes. And it just seemed entirely implausible to us. That was why we first began to really doubt her connection to the crime.

Well, then we decided to look into the motive. It turned out the state had made it sound like she had gone out two weeks before to buy life insurance and then waited around for a couple of weeks and then murdered her family. That isn’t what had happened at all. She had originally purchased life insurance about a year before. She stopped paying the premium because she couldn’t afford it. She then went to buy automobile insurance, and the insurance agent persuaded her that she should buy life insurance, too. And it turned out that Frances was vulnerable to that sales pitch.

Insurance agents tend to be pretty good salespeople anyway, but Frances was especially vulnerable to it for a couple of reasons. The first was that her father had always taught her that life insurance was a good form of a forced savings account, and in addition to that, she had recently had a family tragedy where her aunt’s house had burned down, and all of the little kids in the house had died in that fire, and the family hadn’t had enough money to bury them. And the talk in the family was that if only they had life insurance, they would have been able to bury the kids. So you put together that family tragedy with the fact that her dad had had always told her that life insurance was a good thing, and then she goes and visits his insurance agent and the insurance agent says, “You know, you really ought to buy life insurance.” All of a sudden what looked like the motive for this crime turns out to have been a completely ordinary event. Now we don’t have motive, but we have two pieces of physical evidence: the nitrites on the skirt and the fact that she hid the gun that was supposedly the ballistics match.

AMY GOODMAN: David Dow, you’re an attorney, and I don’t know if this is a question for you, but is there something people can do at this point, from your perspective? By the way, we called the prosecutor’s office, and they didn’t get back to us.

DAVID DOW: Yes, well, I’m sure that they won’t be getting back to anybody now. They’ve said what they said on videotape, and now they’re just saying it was a mistake. I think people should write the Board of Pardons and Paroles in Texas. I think they should write the governor’s office and say that this is a woman who’s innocent.

AMY GOODMAN: David Dow, on that note, I want to thank you for being with us, of the University of Houston Law Center. Information on Frances Newton’s case is at FreeFrances.org. We’ll link to it at our website, and we’ll continue to cover this case.