Mark Norwood will be led into a Georgetown courtroom Wednesday to face capital murder charges for a killing that took place more than 25 years ago.
If Norwood, 57, goes to trial in the 1986 beating death of Christine Morton, prosecutors and defense lawyers will have to piece together a decades-old crime. That was what lawyers did for the trial of Dennis Davis last year, when he was convicted of the 1985 murder of his former girlfriend.
With the advent of DNA science and other technological advancements, it is no longer unusual for juries to see evidence from crimes that happened as long ago as the 1970s. But old cases present unique challenges for prosecutors and defense lawyers: Key witnesses may have moved or died, documents could have disappeared, and evidence-collection standards are now much stricter.
“The farther back in time you’re talking about, the more those things fray and disintegrate,” said Rob Owen, a University of Texas School of Law professor who specializes in death penalty cases.
Norwood was arrested in November for the Aug. 13, 1986, murder of Christine Morton. Michael Morton, Christine Morton’s husband, was convicted of her murder in 1987 and spent 25 years in prison. But he was cleared last year after DNA testing was performed on a bandana found about 100 yards from the Mortons’ North Austin home, where she had been beaten to death in bed. Tests showed the biological material on the bandana was not Michael Morton’s, and a national database search revealed the DNA matched Norwood’s.
His DNA was also linked to a similar Austin murder that happened on Jan. 13, 1988. Like Christine Morton, Debra Masters Baker was beaten to death in her bed, and Norwood is a suspect in that cold case.
Russell Hunt Jr., Norwood’s lawyer, expects the judge to delay this week’s hearing to allow him and state prosecutor more time to investigate.
“People change over time. People’s memories change over time,” Hunt said, adding, “Physical evidence gets moved. Physical evidence is stored in different ways.”
Hunt said that verifying other information and determining its relevance to Norwood could be a challenge. For example, other evidence that recently came to light in the Morton case includes a check cashed after Morton’s death with her forged signature and a report that her credit card was fraudulently used days after her death.
“We don’t know if it’s possible to go back and find people involved or records involved,” he said. “Things get lost, and people get lost.”
When Davis was convicted last year of murdering his former girlfriend, he was represented by Wade Russell, an Austin lawyer.
“There’s just myriad problems” mounting a defense in a two-decades-old case, Russell said.
Natalie Antonetti was beaten in the head while she slept on her couch on Oct. 13, 1985. The case was cold until 2006, when Davis’ estranged wife told the police her husband had said that he had “sinned against God and man.”
She later reconciled with Davis, and refused to cooperate with police. But investigators reopened the case and focused on Davis. The woman Davis told police he was with the night of the murder told investigators who reopened the case that she did not have an entry in her journal noting that she was with him when the police called, and it was something she would have recorded.
A quarter-century after the murder, Russell began digging through the old police file to investigate his client’s case. The original police investigator had died. The police case file was incomplete and unorganized, he said. “I would find handwritten notes from various people,” he said. “You have a lot of sketchy information, and you don’t know how it fits into the picture.”
A neighbor had told police that shortly before the murder he saw a large man carrying a bat wearing a T-shirt with a band logo. The neighbor refused to testify. He originally described a man who was larger than Davis. A police sketch of the man made in 1985 based on the neighbor’s description was missing. And Russell said finding other witnesses to challenge the credibility of those who testified against Davis was tough. “I couldn’t track them all down,” he said. “They were scattered so far.”
Davis was found guilty and sentenced to 36 years in prison.
Efrain De La Fuente, a Travis County assistant district attorney who worked on the Davis case, said compiling evidence was just as challenging for prosecutors. There was no DNA linking Davis to the crime, but prosecutors found other women who testified about abusive relationships with him, and one said he had confessed to her. Friends of Davis said he owned a bat and had a screaming match with Antonetti hours before the murder.
“The crime scene speaks to us that it was someone known to her and that it was personal,” De La Fuente said, adding that nothing was stolen. “He took a bat and just inflicted numerous blows to her head.”
Old cases do not come to court based only on new charges, though. Delma Banks Jr. was sentenced to death for the 1980 murder of Richard Whitehead, 16, in Texarkana. Banks, who was 21 when the crime was committed, was convicted of killing Whitehead to steal his car.
In 2004, the United States Supreme Court overturned his sentence, finding that prosecutorial misconduct had led the jury to give Banks the death penalty. This year, Banks is scheduled to face another trial to determine whether his death sentence should be reinstated. Banks’ lawyers must try to find mitigating evidence, information that might prompt jurors to consider a more lenient sentence. Typically, that comes from family members, teachers, co-workers or others who know about the defendants’ past. In Banks’ case, though, many who knew him before he went to prison are dead. Others have moved away.
“It’s hugely problematic that the state would pursue the death penalty in a situation like that,” said Owen of the University of Texas School of Law, who has worked on Banks’ case in the past. “The jury is inevitably going to be presented an incomplete set of facts.”
James Elliott, a prosecutor on the case for more than 30 years, has maintained that he will pursue Banks until he “gets what he deserves.”
In the Norwood case, however, prosecutors have not indicated whether they will seek the death penalty. Lisa Tanner, a special prosecutor in the Texas attorney general’s office, will lead the state’s case. She declined to speak specifically about Norwood, but she discussed the challenges in trying old cases.
She prosecuted two men in the so-called KFC murders. In 1983, five people at a Kentucky Fried Chicken restaurant in Kilgore were robbed and killed. The crime went unsolved until DNA evidence linked two cousins to the scene. They were arrested in 2005; each was sentenced to five consecutive life sentences.
In old cases, Tanner said, DNA evidence is often the key to convincing a jury of a person’s guilt.
“We are able to do things that were utterly inconceivable back in the ’70s, ’80s or even the early ’90s,” she said. “In cold cases, it seems like that is the difference.”
Texas Tribune donors or members may be quoted or mentioned in our stories, or may be the subject of them. For a complete list of contributors, click here.