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Cave Murder: Court Grants Review

Pitonyak to argue that state withheld favorable evidence
Jordan Smith, 5:00pm, Wed. Mar. 20, 2013
Jennifer Cave was murdered in 2005

On Monday, the 5th U.S. Circuit Court of Appeals concluded that Colton Pitonyak, convicted in 2007 of the murder of Jennifer Cave, should have the opportunity to argue that the state impermissibly withheld from his defense evidence suggesting that another person was responsible for Cave's death.

In a brief order, the Fifth Circuit granted Pitonyak's defense a Certificate of Appealability, which allows him to pursue an appeal that has to date been rejected by both state and federal district courts. At issue is whether Travis County prosecutors withheld statements made by Laura Hall – a friend with whom Pitonyak fled to Mexico after the murder – while she was in jail awaiting trial for tampering with evidence and hindering apprehension.

Pitonyak’s former friend Cave was found murdered and dismembered – shot and stabbed multiple times, her hands and head cut off and wrapped in plastic bags – inside his West Campus apartment on Aug. 18, 2005, by her mother Sharon and her then-fiancé Jim Sedwick. As it turned out, Pitonyak had fled with Hall to Mexico, where the pair spent five days before being picked up by U.S. marshals and returned to Austin. Among the evidence used against Pitonyak were records of phone calls and text messages to Hall early in the morning on Aug. 17, and evidence that he'd made a run to a hardware store to purchase a hacksaw, garbage bags, cleaning products, and rubber gloves.

Notably, Pitonyak testified that he did not remember shooting Cave, but that he must have done so; he'd been struggling with substance abuse for several years and was on a several-days-long bender at the time of Cave's death. Pitonyak also said that it was Hall who devised the plan to dismember Cave. He was convicted and sentenced to 55 years in prison.

In her defense, Hall's attorneys argued that she was afraid of Pitonyak and that she went along with him out of fear that he would hurt her. In the end, Hall was sentenced to 10 years in prison.

Pitonyak's lawyers argued in both state and federal district court that he was denied a fair trial because prosecutors withheld from his defense exculpatory evidence. While those previous appeals had been denied, the Fifth Circuit has now resurrected the claim, offering Pitonyak another opportunity to make his case. (Not only did the federal district court deny Pitonyak's appeal, but it said that he could not raise the issue again in court, which is what prompted the Fifth Circuit to issue the COA, overruling the finality of the district court’s decision.)

Specifically, lawyers Joe Turner and Chris Perri say that prosecutors failed to disclose before Pitonyak's trial that a counselor of Hall's in jail had noted in her file that two inmates provided information about Hall having confessed to Cave's murder. "Despite the fact that the same prosecutors handled Hall's and [Pitonyak's] cases, the prosecutors failed to reveal the contents of these notes to [Pitonyak's] attorneys prior to trial," reads the court filing. Moreover, they argue that the state similarly failed to reveal to Pitonyak's trial attorneys that Hall had made damning statements to Pitonyak’s friend Nora Sullivan, regarding her having to begin dismembering Cave and that Pitonyak needed motivating to get involved. That information came out at Hall's trial, months after Pitonyak was convicted, but was never given to his attorneys, Turner and Perri argue.

On appeal, the state court concluded that even had Hall confessed and it had been disclosed to Pitonyak's defense it would "have had no reasonable impact on [his] trial" given "the weight of the other evidence" in the case. Indeed, the courts seem to have concluded that because Pitonyak said he "must have" been responsible that the statement was as good as a confession. In fact, argues Turner, it is not the same thing. To date, he says, "there has been no deep analysis of the facts of the case."

Turner hopes to argue the case before the Fifth Circuit; whether the court will allow that is a decision that will be made after the state files its response to Turner's appeal.

Meanwhile, Turner has also secured an agreement from Travis County District Attorney Rosemary Lehmberg to conduct additional DNA testing in the case – some of it further testing on items already subjected to testing and some of it new testing on items never before subjected to DNA analysis. In particular, Turner says he is interested in having tested the handle of a knife that was used to repeatedly stab Cave, likely after she was shot. Nonetheless, Lehmberg remains confident in Pitonyak's conviction. "We have full confidence in the jury's verdict," she wrote in an email to the Chronicle. "We are agreeing to the testing because we want to make sure the community also maintains confidence in the conviction."

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