Salvation on Death Row

by John T. Thorngren

  Further lack of evidence in this circumstantial case included no nitrates on any of Frances’ other clothes, no blood on any of her clothes, no blood on the pistol, no blood in the sinks or shower in her apartment, and no blood in her car. During the trial, there was mention of another gun identical to that used in the murders, but further elaboration vanished in contradiction and silence. Inexplicably, the fact that a neighbor heard a gunshot at a time when Frances could not have been present never surfaced. “The witnesses all agree that Newton was not at the apartment at [that time].”(65) Also, an unidentified witness called the Harris County Sheriff’s Department and said she saw a red pickup truck at the scene driven by a black male she thought to be about thirty years old. The caller gave them a license plate number, but no follow-up action appears to have taken place. Nonetheless, the state now “clearly” had the second criteria for guilt: the means.

  The state “clearly” found an opportunity that was even more unrealistic than motive and means. In a twenty-minute period, Frances would have had to kill her family, remove all blood from herself and her clothing, and clean her hands of all gunpowder residue—a physical impossibility within the time period before testing.

  The corker to this empty bottle of justice came from two sources: Frances’ court-appointed attorney, Mr. Ronald G. Mock, and the prosecution’s psychiatrist, Dr. Charles Covert. Two months after the court appointed Mock to be Frances’ attorney, Frances knew something was amiss and wrote a letter to the trial judge stating that because of his minimal contact with her, it was like having no attorney at all. A month later, still represented by Mock, who appeared to continue doing nothing, Frances filed a motion to dismiss him and have the court appoint her a new counsel, stating that she had “no faith or confidence” in Mock. Without a hearing, the court denied the motion on the day of its receipt.

  The week before the trial started, Frances’ family was able to gather enough money to hire a new attorney rather than have Frances’ fate rest in Mock’s hands. On the day the trial was to begin, the court held a hearing to grant a substitution and a continuance so the new attorney might prepare a viable case. Mock was asked if he had talked to Sondra Nelms, and he replied, “I tell you I’m a lawyer; I’m not an investigator.”(66) He was further asked the names of any witnesses (for the prosecution or defense) that he had talked to. He replied that he couldn’t do so “off the top of his head.”(67) In truth, Mock had not interviewed anyone and had not subpoenaed any witnesses for the defense on the day the trial was to begin. Although the court agreed to the substitution of new counsel, it would not grant the continuance. This act, in effect, kept Mock as Frances’ attorney. Because of Mock’s lack of investigation, the jury never knew many facts concerning Frances Newton:

  1) That the police appeared to have recovered two pistols;

  2) That it took two weeks after the ballistics examination before they arrested her;

  3) Whether the nitrates on her skirt were from gunpowder or fertilizer;

  4) That there was a trail of blood in the apartment, thus amplifying the fact that there was no blood anywhere on Frances’ person or in her car;

  5) That only a basically impossible, narrow window of twenty minutes existed during which Frances could have killed her family and removed all evidence connecting her to the crime;

  6) That a witness noted the time of the crime from the sound of a gunshot when the state’s witness placed Frances elsewhere;

  7) That a witness saw a red pickup truck at the scene during the crime and took down the license-plate number;

  8) That the police did not pursue any investigation of the red pickup truck; and

  9) That Frances was emotionally vulnerable to an insurance salesman’s pitch when she purchased life insurance on her husband and daughter, and that she purchased none on her son, who also was murdered.

  Had these facts come forth, “no reasonable juror would have found her guilty.”(68) But they did not, in keeping with the prosecution’s portrayal of Frances Newton as a monster who preplanned the execution of her family for insurance gain.

  The New York Times (69) published a veneer-blistering article on Mock’s competency regarding another Texas Death Row inmate. The Skeptical Juror, a blog by J. Bennett Allen,(70) states that “[Ron Mock] was the king of bad attorneys,” and that of nineteen clients he represented on capital murder charges, sixteen were or are on Death Row. None was acquitted. At one time, a section of Death Row was referred to as “The Mock Wing.” After 2001, Mock decided not to pursue capital cases. The Texas Bar Association suspended him twice and placed him on probation three times. As of April 2017, the Texas Bar Association(71) lists Mr. Ronald G. Mock as having been suspended from practicing law in Texas from 2004 to 2007.

  The Skeptical Juror rates innocence on a probability scale. He gave Frances Newton 91 percent, one of the highest of two he has given to a Death Row inmate. The 91 percent means Frances had only a 9 percent chance of being guilty. No racial bias appeared in the state’s choice of her attorney: Frances Newton is black, and so is Ron Mock; in fact, an overwhelming majority of Mock’s Death Row clients are or were black.

  In the punishment phase of Frances’ trial, the state hired Covert, a psychiatrist, as its prophet for the special issue question: “Is there a probability that the defendant would commit acts of violence that would constitute a continuing threat to society?” Frances Newton was not a violent person; she had just one conviction for forgery. Covert never interviewed Frances and never talked to her. He ascended to the witness stand and answered questions on a hypothetical case, describing Frances as seen through the eyes of the prosecution, and he then was asked to visualize her in the future. Covert stated that this hypothetical case indeed would have a probability of committing acts of violence in the future. The jury returned the death penalty.

  For John B. Holmes, Jr., district attorney for Harris County, who also sanctioned the death penalty against Karla Faye and me, this was just another day of business as usual in his department, performing his elected duties to the limit of his ability in keeping with the desires of his constituency: being tough on crime. For opponents of the death penalty, especially their premise of killing the innocent, this was “a date which will live in infamy.”(72)

  ***

  Frances was a very sweet individual, a very quiet and private, beautiful person. Frances was a Christian when she arrived. In her mugshot, I think you can tell this when you compare hers to the before-salvation mugshots of Karla Faye Tucker and Betty Lou Beets. Frances loved her family and never wavered from her position of innocence. Her prayers always included a plea that they would find the real killers.

  Frances Elaine Newton, mugshot, 1988

  And now there were four on Female Death Row, Mountain View Unit, Gatesville, Texas, Texas Department of Criminal Justice: Betty Lou, Karla Faye, Frances, and me.

  CHAPTER 15

  As I had taught Karla Faye and Betty Lou to knit and crochet, so I passed this gift on to Frances. It was an honor to pass this gift to women as it had been passed to me from Ms. Jones, who worked in the kitchen at Juvenile Hall in California, a lifetime away, when I was running from foster homes.

  We now had a regular “production line” to make Parole Pal dolls. I can’t remember if Betty Lou didn’t want to join us the day the picture below was taken or if she was away attending a hearing. As I mentioned, Betty Lou preferred the company of men to women; she was a real loner.

  Parole Pal dolls

  Making Parole Pal dolls, quilts, afghans, and other arts and crafts was available in a Death Row work capable program known as Special Projects. If you were work capable, you could spend six to eight hours a day in Special Projects and also get two hours per day in the rec room; but if you were not work capable, you got only one hour. If you were not in the Psych Center or in Ad Seg, you were work capable, but you could elect not to join the program
. The program was a product of the David Ruíz lawsuit, Ruíz v. Estelle.(73)

  ***

  No one—not one inmate or employee of TDCJ— with any tenure in the Texas prison system has not heard of David Ruíz(74, 75) and the volcanic civil action case filed June 1972 in the U.S. District Court for the Eastern District of Texas, Tyler Division, C.A. [Civil Action] No. 5523, a pro se (for one’s own behalf), handwritten writ requesting injunctive relief for confinement conditions that violated his constitutional rights, specifically, the Eighth and Fourteenth Amendments regarding cruel and unusual punishment and due process. When the ash settled eight years later under Ruíz v. Estelle,(73, 80) the Texas prison system (then known as TDC, Texas Department of Corrections) changed dramatically—mostly for the good and some for the very bad through unexpected consequences.

  The trial lasted 159 days, involved 1,546 exhibits, heard testimony from 349 witnesses, included multiple horror stories of man’s inhumanity toward man, and ended with the TDC coming under federal oversight. The issues in Ruíz v. Estelle were:

  1) Failing or refusing to provide inmates with a medical care delivery system which is accessible and adequate to meet their medical needs;

  2) Failing or refusing to provide living and working conditions which do not jeopardize the health and safety of inmates;

  3) Failing or refusing to provide inmates with reasonable protection from physical assault;

  4) Failing or refusing to permit inmates reasonable access to the courts and to public officials for redress of grievances;

  5) Failing or refusing to supervise and control prison officials and employees sufficiently to prevent the systematic imposition of summary and other cruel and unusual punishment on inmates and the systematic denial of due process to inmates.

  Legal tremors and eruptions from the Ruíz-instigated judgment continued for another twenty-two years, finally bringing the longest prison lawsuit to a close in 2002, a total of thirty years from inception.

  David Resendez Ruíz originated from the east side of Austin, Texas, but spent most of his early life and education, beginning at age twelve, in Gatesville, Texas—The Gatesville State School for Boys in its Mountain View Unit for incorrigibles, which, as noted, now currently houses female Death Row. Ruíz completed four separate terms of lower education through Gatesville, with thirteen attempted escapes. Clearly David Ruíz had an authority problem; perhaps his middle initial, R, should have stood for Rebel. In 1959, Ruíz graduated from Gatesville because he had reached the adult age of seventeen. After a short hiatus on the outside, he “applied” for a higher “twelve-year degree” at Huntsville Penitentiary, where he was readily admitted based upon his most recent aptitude for auto theft.

  At that time, TDC used the control model for prisons. TDC expected a prisoner to follow all the rules and do his time—to be under control. If he talked back or slacked on his job, punishment might be a severe beating, sometimes to his death, or an extended stay in “the hole,” solitary confinement, subsisting on nothing but bread and water. It was absolute control: break his spirit, drive out his criminal propensities, and make him never-ever-ever do anything to come back to TDC. TDC was an economical and self-sufficient system. The control method avoided the cost of hiring an inordinate number of guards by using building tenders, convicts chosen by the warden, to run the cellblocks. Building tenders received special privileges such as having their cell doors unlocked, eating their meals in private, etc. They had brutal, punitive powers that they used freely. In turn, the building tenders selected other inmates to enforce their rule. They corralled the inmates into forced labor (picking cotton, hoeing vegetables, etc.) under the hot Texas sun for ten hours a day—all de facto slave labor, as noted, making the TDC system economically self-sufficient. It was a quiet and surface-peaceful operation.

  Muckrakers and jailhouse lawyers were discouraged; politicians loved the low cost. People on the outside figured that a convict reaped what he sowed; little did they know this was also literal. A child’s parent might make a prophetic remark when they saw prisoners in stripes working on a chain gang by the side of a road, but no one knew the inmates’ plight. No one cared. Don’t rock any boats. Rehabilitation and education were encouraged—if your skin pigment permitted it.

  Although accustomed to stoop labor, Ruíz found the “employment” at TDC insufferable. He rebelled. On one occasion, he stabbed a building tender; on another, he axed a fellow convict. He was periodically beaten and thrown into the hole. After seven years, Ruíz entered the free world for a brief thirteen-month sabbatical. He returned, this time to the Eastham Unit, for a twenty-five-year “advanced degree.” He tried to escape only to be caught, beaten, and tossed into the hole for forty-five days on bread and water. Twenty pounds lighter, he had had enough of the TDC work ethic. He cut his Achilles tendons on both ankles. Known as heel-stringing, this exempted him from the heavy work.

  Alternating between the infirmary and the hole, Ruíz met his mentor, David Cruz, known in the TDC system as a writ-writer, a jailhouse lawyer. Ruíz’s objects of rebellion soon transferred to the system per se rather than to those in the system. He switched from a rebel without a cause to one with a cause. The TDC control model was bound to fall; it was just a matter of time and the right people. The right people came in the form of some New York lawyers and Judge William Wayne Justice—indeed, that was his last name. Judge Justice, Eastern District Federal Court, was nominated by Texas Senator Ralph Yarborough and appointed by President Lyndon Johnson. If you are looking for a charge of premeditated murder, mention Yarborough, LBJ, and Judge Justice in front of a senior Texas good-ol’-boy, and he will probably die of a coronary, gasping his last while yelling something about “liberal, pinko communists.” Many consider that the efforts of these three personages, amongst several others, marked the beginning of the end of the Democratic Party’s domination in Texas as of this publication.

  Ruíz became the lead plaintiff along with seven other inmates in a writ for civil rights violations under section 1983 of the long-forgotten Civil Rights Act of 1889—yes, 1889, and this is not a typographical error. Judge Justice was the activist engine dictating which cars joined his train as plaintiff lawyers and convict plaintiffs; he requested the U.S. Justice Department to couple its engine as amicus curiae (friend of the court), later entered as plaintiff-intervenor.

  John Hill, the attorney general of Texas under Governor Bill Clements and his staff, fought back with every drop of legal ink they could place on paper for lawsuits, countersuits, stays, delays, and argumentative obfuscations. One of the most memorable actions was a motion for a change of venue from the Eastern District to the Southern District Court in Houston. To their chagrin, Judge Justice merely followed and moved to Houston. No recalcitrant Texas caboose was about to derail his train to prison reform. A fascinating book that details the legal case, the people involved, and interviews with David Ruíz appears in Appendix B.(76)

  Mark White(77) was the secretary of state during the filing of the Ruíz Case, and John Hill was the attorney general. Hill put together a legal army dedicated to fight the intrusion on a system that had been successful for years. Their position was that Texas was not running an unconstitutionally cruel system. Mark White became the attorney general for the State of Texas in 1979. He followed the battle plan of his predecessor, Hill, and retained the same army that had begun the fight. For years, Texas had very few violent inmate-on-inmate deaths, no more than one every several years. Mark White often remarked, “You might say that you were abused; but I can’t look at you and tell that without a physical examination. But I can look at you and tell whether you are dead or alive.”

  White also stated that he did agree with the concept behind the district court’s decisions that Texas was not doing as good a job as it could have. Governor Clements, who had been supportive of Hill’s prior defense, turned on White and hollered irresponsibility, lack of effectiveness, etc. But Wh
ite had announced that he planned to challenge Clements for the governorship. White then called a meeting of the Texas Prison Board—all of whose members had been appointed by Clements—to tell them his legal defense plan and to tour the Walls Unit in Huntsville. There in the infirmary, White noticed a warren of dust and lint bunnies under every bed.

  “Why hasn’t someone cleaned up all this lint? I can’t win a lawsuit unless I have some facts in our favor,” he said.

  A member of the prison board responded, “We don’t have the staff to do that.”

  “Then why don’t you get that fellow out front who is shining the bars on this prison to come up here and shine these floors? They are suing us for dirty floors, not dirty bars.”

  In spite of the lackadaisical approach of Clements’ prison board, White felt they did the best job possible under difficult circumstances and were able to eliminate some of the excessive terms of the Ruíz decision, such as the idealistic impossibility of a single cell for every prisoner. But like so many changes made by man with his bottomless wisdom, what little good that comes always comes mixed with the bad. Regarding the bad, and unfortunately the very bad, as White states: “The removal of the building tenders left a power vacuum.” Not only does nature abhor a vacuum, but prisons abhor the vacuum left by a lack of hierarchy, a hierarchy soon replaced by ethnic gangs: the Aryan Brotherhood, Barrio Azteca, Black Guerrilla Family, and the list grows daily.