Frank Basil McFarland

Frank Basil McFarland (Texas)

Allegation

On April 29, 1998, the State of Texas, with the acquiescence of the federal government, executed Frank Basil McFarland by lethal injection. The state and federal governments failed to ensure McFarland's right to a fair and impartial trial by not providing effective counsel, withholding exculpatory evidence, permitting perjured testimony, making deals with witnesses, and using jailhouse informants. The unfair trial and refusal of the state to hear new evidence resulted in McFarland's execution.

Crime

On February 1, 1988, Terry Hokanson, a shoeshine girl at a topless bar, was seen near a parking lot by three boys. She called for help, stumbled, and fell to the ground. She had been stabbed repeatedly. Before she died, she told the boys that she thought she had known her assailants, but realized she did not know them when she accepted an invitation to get in their car and go partying. She was quite conscious. She gave her name and other details to a police officer, who inadvertently arrived at the scene of the crime while on routine patrol. McFarland was arrested over a month later.

Salient Issues

The state withheld evidence regarding the victim's dying declarations at the crime scene: Three boys found her and two of these boys spoke with her. The one who did not was the only one to testify at trial.
The two boys who spoke with the victim gave sworn oral statements and written statements just after the murder that were suppressed by the state and discovered seven years later through a Freedom of Information request.
All three boys saw a white car in the area; only one testified and he mentioned a white car.
Six state witnesses (5 police officers and one police dispatcher) testified that the boys said they saw a blue car, thereby perjuring themselves. McFarland's car was blue.
DNA testing by an FBI specialist on hair found in the victim's hands was inconsistent with that of McFarland or his co-defendant.
DNA testing on hairs found in McFarland's car was consistent with those from a rabbit skin coat worn by the victim. Semen in victim was consistent with McFarland and 6% of the Caucasian population in the U.S.
The state's star witness had warrants out for his arrest for parole violation. After McFarland was convicted, they were dismissed. This witness gave testimony about why he returned to testify and about a conversation he had with McFarland's co-defendant. This testimony was rebutted in affidavits by the witness' own mother and a witness to the conversation, Larry York. Neither was called to testify. The star witness had previously been a police informant.
Another state witness had a pending arrest warrant which was later dismissed; when the warrant was recalled, the reason given was "key witness in a murder prosecution in Texas."
McFarland's co-defendant was murdered a month after Hokanson. Throughout McFarland's trial, prejudicial statements were made by the prosecution that McFarland might have been involved in this murder. The actual murderer was convicted years later and had no connection to McFarland.
The police officer that spoke with the victim before her death was hypnotized to "enhance" his recall of her statements. He then claimed she had said, "two white men she met at the club had raped and stabbed her."
Another police officer testified that the victim did know McFarland previous to the murder; she did not name him before she died, bolstering the defense position that her assailants were unknown to her.
The deceased co-defendant's girlfriend gave hearsay testimony that she had heard her boyfriend talk about the fact that he and McFarland killed a girl. She had not mentioned this in earlier statements.
The state presented evidence about McFarland's character and acts of misconduct that should have been deemed inadmissible in the guilt/innocence phase of the trial.
Defense counsel failed to present evidence that the victim knew McFarland previously, that McFarland's girlfriend also had a rabbit skin coat and had been in his car, and that two witnesses could have impeached star witness testimony.

The Trial

Michael Wilson, McFarland's co-defendant, was killed a month after Terry Hokanson. Two witnesses came forward and testified that Wilson had "confessed" to his involvement in the Hokanson murder and had implicated McFarland as the killer. One was Wilson's girlfriend, Rachel Revill, who was an illegal immigrant, and the other was Mark Noblett, a known police informant who was able to walk away from an arrest warrant a day after the trial ended. Noblett gave perjured testimony about Wilson's confession that could have been rebutted by his own mother and Larry York, who were not called to testify. Both Revill and Noblett were questionable witnesses. The prosecution used Wilson's murder in the trial to suggest the possible involvement of McFarland in another violent crime, although McFarland was never formally charged.

Of the people who spoke with the victim before her death, two boys who had provided sworn statements during the investigation were never called by the state to testify. Furthermore, the state failed to turn the boys' statements over to the defense as exculpatory evidence. Neither boy ever mentioned a blue car, only a white car. Yet, five police officers and a dispatcher testified at trial that the boys had seen a blue car. A police officer used hypnosis to elicit quite different testimony from the original sworn statements.

Forensic evidence showed that McFarland was in a group of 6% of Caucasians in the U.S. who could have left semen in the victim. Hair in her hands was not from Wilson or McFarland, according to tests available at that time. The hair from a rabbit skin coat found in McFarland's car could have been from the victim's coat. It was not until sentencing that it was brought out that McFarland's girlfriend had a similar coat.

McFarland was convicted and sentenced to death.

Appeals

In 1993, McFarland had an execution date and no lawyer because Texas law at that time did not require the state to provide legal representation after his first automatic appeal. He contacted the now defunded Texas Resource Center, and they agreed to help him find counsel. State and federal courts, including the Fifth Circuit Court of Appeals, denied him both appointment of counsel and a stay of execution without the filing of a habeas petition. Hence, he filed a pro se writ of habeas corpus. The U.S. Supreme Court stayed the execution and ordered federal courts to appoint him habeas counsel. State courts and the Court of Criminal Appeals denied both the petition for writ of habeas corpus and requests for discovery on November 15, 1995. Petition for writ of certiorari was filed in 1995 and a Motion for Certificate of Probable Cause to Appeal in April 1998. All were denied and McFarland chose not to file a Clemency Petition.

Conclusion

Frank McFarland was executed despite compelling evidence of his innocence and evidence that his trial was unfair. His trial counsel failed to raise issues that would have been exculpatory. This occurred at the same time that the state suppressed evidence favorable to McFarland. Perjured testimony from police officers, key witnesses, and the use of an informant enabled the state to gain a conviction and death sentence.