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Speedy Trials in Texas: Prosecuting “Killer Nurse” Genene Jones for 1981 Crime

Do you remember where you were in 1981?  Were you even alive in 1981? Let’s think back … 1981 was the year:

  • President Ronald Reagan was shot by John Hinckley;
  • the CDC recognized the first five cases of AIDS in five homosexual men diagnosed with a “rare form of pneumonia” in Los Angeles;
  • Donkey Kong was released; and
  • Prince Charles married Lady Diana Spencer.
  • Oh, and Justin Timberlake was born.

It was also the year that an 11 month old infant named Joshua Sawyer died as a patient in the pediatric ICU at the Bexar County Hospital.  A woman named Genene Jones was a nurse there at the time.

Last week, she was indicted for the murder of that baby on December 12, 1981, by the Bexar County Grand Jury, according to a news release issued by the Bexar County District Attorney on May 25, 2017.

That’s right.  Genene Jones has just been indicted for a crime that happened over 35 years ago.  And it’s making news all around the world.

 

Prosecutor’s Argument for Bringing New Charges on 35-year-old Murder Case

The Prosecutor’s argument here is Genene Jones is “suspected of killing up to 60 infants.”  He points to two convictions.

Back in 1984, she was sentenced to 99 years in prison for the death of 15-month-old Chelsea McClellan In a separate trial, Jones was given 60 years in prison for injecting then 4-week-old Rolando Santos with Heparin.  (He survived.)

The sentences have been served concurrently.  However, she is due to get out of prison very soon.

Genene Jones will be released from prison in March 2018 “due to a law in effect at the time Jones was sentenced.”  This is a “mandatory release.”

So, the prosecutor is working hard to keep her behind bars.  Now that charges have been filed in Bexar County, he is having her extradited to his county to await trial in the new case.

Insofar as this new case, the prosecutor gives a cursory description:

“[It is alleged that on] December 12, 1981, Jones was working as a nurse in the pediatric intensive care unit in what was formally known as the Bexar County Hospital. Evidence shows that Jones injected 11-month-old Joshua Sawyer with a toxic level of Dilantin.”

And as for the reason that he is pursuing this 1981 murder charge:

“As people are well aware, I believe children are a gift from the Lord,” said District Attorney Nico LaHood. “Genene Jones did not see children in this regard. She is pure evil and justice warrants that she be held accountable for the crimes she committed. Our Office will attempt to account for every child whose life was stolen by the actions of Jones. Our only focus is justice.”

So, a Texas District Attorney is enthusiastic to prosecute a crime that happened 35 years ago.  Does anyone see a problem here?

No Statute of Limitations on Murder

Some may wonder about time limits for prosecutors to file charges.  And that’s true: there are deadlines for filing criminal charges in most cases, for both state and federal crimes.

That was one of the big challenges that the prosecutors faced in the Dennis Hastert case, remember?  See, “Structuring and Dennis Hastert: Is This Case Setting a Precedent for Prosecutorial Overreach of Your Rights?

In Texas, if someone is behind bars then the prosecutor has 90 days to file charges against them for a felony charge; if they are not incarcerated, he has up to 10 years to do so (it depends upon the particular felony involved).

However, there are some felony charges here in Texas that have no time deadline for bringing charges.  Murder is one of them.

So, there’s no statute of limitations barring the filing of a felony murder charge by a Texas prosecutor no matter how old the crime may be.

Speedy Trial and the United States Constitution

The United States Constitution provides the protection of a Speedy Trial in the Sixth Amendment, which states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense….

Federal prosecutors must content with the Speedy Trial Act of 1974, as well (18 U.S.C. §§ 3161-3174). This is a federal law that mandates all federal prosecutions take place within statutory time limits. See, the United States Attorney General Criminal Resource Manual at 628.

Texas has no Speedy Trial Act.  Texas prosecutors have to comply with the federal constitutional protections provided by the Sixth Amendment, but there’s no state Speedy Trial Act to follow.

Importance of a Speedy Trial

As the American Bar Association has explained in its Criminal Justice Standards, “…the right of an accused to a speedy trial is fundamental. “

However, the ABA points out that the Speedy Trial Clause does more than protect the defendant’s rights.  The “public, including victims and witnesses” have “an interest in the timely resolution of criminal cases.”

It’s important to all of us that those who have the power to arrest, charge, jail, try, and convict an individual in this state (or this country) have that power controlled and curtailed.

There are good reasons why the founding fathers wrote the Sixth Amendment and it’s more than protecting the individual who has been accused of committing the crime.

Defense Arguments for Failure to Have Speedy Trial in Texas

When there is a delay in bringing charges, the defendant has to take steps to challenge what is happening.  The prosecutor will not bring up speedy trial, and the judge cannot be expected to do so.

The defense lawyer must fight here by bringing motions before the court for the judge to consider.  Here, the argument is that the failure of a speedy trial merits dismissal of the charges under constitutional standards.

1.  Sixth Amendment

The defendant can argue, of course, that their federal constitutional protections under the Sixth Amendment have been violated when charges are brought against him.  In Barker v. Wingo, 407 U.S. 514 (1972), the United States Supreme Court  provides the test for courts to determine whether or not the defendant’s Sixth Amendment right to a speedy trial has been violated.

The test involves (1) length of the delay, (2) reason for the delay, the (3) defendant’s assertion of his right to a speedy trial, and (4) prejudice to the defendant caused by delay. Barker, 407 U.S. at 530.

2.  Fifth Amendment

Additionally, there is the argument that Fifth Amendment due process rights have been violated by the failure to bring the charges sooner.  Here, the court must find that the defendant has experienced actual prejudice and that the government has intentionally delayed filing the charges so it can have an advantage.  United States v. Lovasco, 431 U.S. 783 (1977).

Problems with Getting a Speedy Trial in Texas

There are problems getting a speedy trial in Texas.  Prosecutors (and some criminal defense attorneys) may argue that defendants don’t want a speedy trial.  However, ask lots of defendants – particularly those sitting in jail and unable to make bail — and you may get a different answer.

1.  Unable to Make Bail, in Jail for Years without a Speedy Trial

For instance, there’s the 2013 expose by reporters James Pinkerton and Brian Rogers published in the Houston Chronicle as “Right to a speedy trial? Ask these defendants; Suspects in criminal cases still sit behind bars – even as long as 7 years,”

In their story, they describe 18 men who had been in jail for a total of 90 years without going to trial.  These people are innocent until proven guilty, but still behind bars.

2. Evidence Changes Over Time

Another big problem addressed by the Speedy Trial Clause besides incarceration of people who have not been convicted is the issue of evidence.

Evidence does not stay in place, unchanged, over time.  Witnesses forget things.  Paper ages; ink fades.  Old faxes are impossible to read.  Can you recall where you were on December 12, 1981? How many documents do you have that date back to December 1981?  What condition are they in? Who’s had access to them?

December 12, 1981 is the date that infant Joshua Sawyer died in that San Antonio hospital and for which the new murder charges have been brought in May 2017.

For more on the background of the Genene Jones case, read her Wikimedia bio, as well as the Texas Monthly coverage (co-published with ProPublica) in “Prosecutors Race to Keep Angel-of-Death Behind Bars.”  

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”


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