Terry Franks admitted shooting two people to death and seriously wounding two others. That part was cut and dried. What was his defense? Insanity. Uranium-related temporary insanity. Gamma rays on the brain, so to speak.
The 25-year-old Navajo has certifiable brain damage that left him with an IQ of about 60 or 70 and the emotional maturity of a ten-year-old. And according to some nationally respected experts, his mental defects may well have been caused by radiation from the uranium surrounding his home on the Navajo reservation near Shiprock, New Mexico, where Indian labor and crudely cut mines provided half of all uranium used in the United States in the past fifty years.
IT'S BEEN KNOWN for some time that uranium radiation is the primary cause of lung cancer among Navajo uranium miners. Terry Franks' father, a uranium miner, died of uranium-induced lung cancer, as did Franks' grandfather. But during the nine-day trial earlier this month in U.S. District Court in Phoenix, federal public defender Jon Sands introduced evidence from an unpublished study that for the first time links uranium to abnormally high birth defects among Navajos born in the Shiprock Indian Health Service Hospital.
Between 1964 (when the hospital began keeping records) and 1975 (when mining in the area declined dramatically), more than 150 Navajo babies were born with problems ranging from clubfoot and cleft palates to cerebral palsy and mental retardation, according to a study sponsored by the March of Dimes. The number of children born mentally retarded, like Terry Franks and his two brothers who died of their ailments, was nearly three times greater before 1975 than after that date, says Dr. Lora M. Shields, a Greeley, Colorado, scientist who performed the study. Overall, she says, birth defects ranged from two to eight times greater than what could be expected in the general population.
When Shields linked the cold statistics with interviews, she says she found "a significant correlation" between a child's birth defects and how close the mother lived to the mines, as well as a "trend" linking birth defects to the number of years the father had worked in the mines.
Shields, a 75-year-old botanist and chemist who has spent much of her life examining the effects of radiation on plants and humans, officially retired ten years ago from New Mexico Highlands University. But research grants enabled her to keep working on the Navajo study. She says she had no idea her work would bring her to testify in a federal courtroom in a first-degree murder trial. But, she says, "I was pleased to do it. I found it heartwarming and very rewarding [for the research] to have a practical application."
Sands, the public defender, concedes that the unique defense was about the only thing he could have offered. After all, Terry Franks had not only shot four people in front of witnesses, he'd also confessed to his mother and to the FBI.
NEARLY EVERYONE involved agrees that Terry Franks' fuse started burning short sometime in the afternoon of June 24, 1988. He and some teen-age friends were drinking beer and hanging around the Harvey residence, home to fourteen-year-old Esther, who Franks says had been his girlfriend for three years. Things began to sour when Eugene George, 26, put his arm around Esther and, despite Franks' pleading, refused to stop.
When Esther's brothers, Irvin and Louis, threw Franks off the property, he ran to the nearby home of a clansman and returned with a .22-caliber semi-automatic rifle. Franks, according to the prosecutor and his own confession, fatally shot Irvin Harvey in the neck, then shot and wounded Esther Harvey as she confronted him. Franks then fired into the house, wounding Louis Harvey, and finally went into the backyard, where he shot and killed Eugene George.
Franks then went home, told his mother he'd killed some people and disappeared into the mountains for three days before he surrendered to police, according to all accounts.
Jon Sands says one of the most telling aspects of the case came at the end of Franks' confession to the FBI, when Franks' words, the agent wrote, were, "I'm sorry. I won't do it again."
That, Sands told the jury, was one indication that Franks was a "child in a man's body," a person who really didn't know the significance of his actions.
Indeed, an examination by Scottsdale psychologist Ron Teed showed that Terry Franks had an IQ of about 60 or 70 and a mental age of ten or eleven. Because of that, Teed told the jury, Franks' mental "circuitry" was cross-wired. Unlike most people, who would proceed from emotion to thought to behavior, Franks went from emotion directly to behavior and only then thought about what he'd done. Fred Rosenthal, a San Francisco psychiatrist and former adviser to the United Nations on the effects of radiation, told the jury that "although nobody can say for certain, it's very likely" that Franks suffered brain damage as a result of uranium radiation exposure, both before and after he was born.
The government's own surveys show that in Shiprock, radiation dozens of times higher than EPA limits was everywhere, even in the stone the Franks family used to build their bread oven, pantry and foundation for the house. "It was in the food they ate, the water they drank, and the children they buried," Sands told the jury in closing arguments.
But brain damage or mental retardation don't equal insanity. The trigger in this case, Rosenthal says, was alcohol. "Even minimal brain damage makes a person much more sensitive to drugs and alcohol," he says.
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Assistant U.S. Attorney Linda Akers countered with a psychologist and a psychiatrist who testified that Franks did not have brain damage and was not retarded. Akers also brought in Kim Kearfott, an Arizona State University professor of nuclear and biomedical engineering, who told the jury there was no "demonstrable" correlation between uranium exposure and either brain damage or retardation.
In the end, the jury did not find Franks innocent by reason of insanity. But jury foreman Bill Sangerman says several jurors bought Sands' reasoning that Franks was temporarily insane. They were willing to acquit Franks, but others weren't sure that Franks would be institutionalized if he were acquitted. So, they compromised. The jury returned a verdict of second-degree murder, meaning Franks could spend 35 years in prison.
Technically, Sangerman says, the jury set aside the uranium factor because Kearfott's testimony so emphatically contradicted Shields. "We couldn't ignore [Kearfott's] credentials," Sangerman says. But that doesn't mean the issue is settled, at least not for Sangerman. If uranium didn't cause the problems among children born near Shiprock, Sangerman says, "then what is the factor that created birth defects during mining operations there?"
"If it wasn't gamma rays," Sangerman says, "then what was it?"
Sands says he considers the verdict a victory, given the circumstances. "This was a tragic case," he said in closing arguments. But by taking a step back, Sands said, "you can see that there was a tragedy in the past as well. In this case, it was radiation and uranium."