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Courts Overturn Three Capital Murder Cases

One defendant acquitted, two sent back for possible retrials
Jordan Smith, 4:04pm, Thu. Feb. 28, 2013

Wednesday was a busy one for lawyers and court-watchers, with the state's highest court knocking down two controversial convictions and the notoriously hard-lined 5th U.S. Circuit Court of Appeals overturning a third – a 2001 Tarrant County death case, vacating the underlying sentence and sending the case back to the trial court.

In that case, a three-judge panel of the Fifth Circuit concluded that the conviction and death sentence handed to Nelson Gongora in 2003 should be vacated, and the case handed back to the district to retry or to dismiss. In its ruling, the court concluded that Tarrant County prosecutors made impermissible comments to the jury about Gongora's failure to take the stand in his own defense, a clear violation of his Fifth Amendment right not to be compelled as a witness. "We find that the extraordinarily extensive comments on Gongora's failure to testify resulted in actual prejudice," the panel ruled.

Gongora was among a handful of men indicted for the 2001 robbery and murder of Delfino Sierra. Gongora was indicted for capital murder in the case, though at trial prosecutors argued that he was either guilty of the robbery and shooting or that he was a participant in the robbery during which Sierra was shot by one of Gongora's cohorts. The result, it seems was confusing: "The jury heard sharply conflicting evidence regarding Gongora's role in the offense, including evidence that the shooter may have been someone other than...Gongora" or a co-defendant, Albert Orosco, reads the Feb. 27 opinion. One witness testified that she didn't see who did the shooting, while others pointed their fingers in several different directions, before ultimately ending up on Gongora – including a witness indicted for the crime but, after agreeing to testify against Gongora, given a plea for 20 years, and a promise that he would not be prosecuted for a second shooting, a fact about which the Fifth Circuit seemed none too amused.

Ultimately, though, prosecutors pointed out that only Gongora did not testify, implying that meant he was the guilty party. Over repeated objection by the defense, prosecutors continued to point out that he failed to take the witness stand. The trial judge declined to grant a mistrial and later rejected Gongora's direct appeal. Texas' Court of Criminal Appeals also ultimately rejected Gongora's argument that the constant comments violated his Fifth Amendment protections. The "complained-of comments appear to be the prosecutors attempt" to comment on the failure of some other witnesses to testify, the CCA concluded. The comments were "not so blatant" that they would have prejudiced the jury, the CCA ruled.

Not only was the CCA wrong, the Fifth Circuit has concluded, but to "conclude otherwise" that the comments did not violate the Fifth Amendment "empties all meaning of this cornerstone of rights upon which our criminal justice system rests," the panel ruled. "Its very centrality renders it a primer rule – etched in the minds of all players in a criminal case. Single episodic violations wil creep in, but repeated and direct violations are both inexplicable and inexcusable. Certainly not excusable by ignorance or inexperience." Not only was the evidence against Gongora fairly weak, the panel noted, but based on notes from the jury during their deliberations, it appears they focused on who and who had not testified – just as prosecutors had suggested they should.

Gongora will be released from prison within six months unless he is retried or pleads guilty, the court wrote.

Despite the fairly strong rebuke from its federal counterpart, the CCA this week also made strong rulings overturning two controversial capital murder cases.

First, the court acquitted 24-year-old Megan Winfrey, who was sentenced to life in prison in 2007 for the murder three years before of Murray Burr, a janitor at her school, based on a dog-scent lineup. The court in 2009 overturned a conviction for the same crime, based on the same dog-scent evidence, of her father, Richard Winfrey.

On Wednesday it did the same for Megan, opining that there was no physical evidence linking her to the crime and that the only thing that tied her to the death was her "scent" allegedly found on the victim's clothes – although the "timing, circumstances, and degree of that contact cannot be determined," Judge Cheryl Johnson wrote for a seven-judge majority. In the end, Johnson wrote, basing a guilty verdict on the evidence at hand is "at best, 'mere theorizing or guessing' about [Winfrey's] possible guilt rather than a reasonable inference based upon evidence and facts presented."

Apparently undeterred, the CCA's Presiding Judge Sharon Keller dissented, opining that the court was not giving due deference to the jury's verdict and that when "viewed in the correct light, the evidence is sufficient to support" Winfrey's conviction. It seems that, in connection with other circumstances – including that the "jury could have believed that [Winfrey] was lying," Keller wrote, when she testified, to "cover up her guilt" – the scent lineup, for Keller, remains a probative and reliable indicator of guilt.

Finally, in a second capital murder case, the CCA has overturned the conviction and remanded to Wood County the case of Jason Payne, sentenced to life in prison for the murder in December 2007 of his wife and stepson. Payne denied guilt and there were indications at the scene that the teenage stepson may have shot his mother and then killed himself. The forensic evidence was not a slam dunk, but there was considerable testimony from a friend of Payne's wife Nichole, including hearsay statements, that Nichole was unhappy, wanted a divorce, and was afraid of Payne.

Payne appealed his conviction arguing that the evidence against him was insufficient to support the guilty verdict and that he had been harmed by the admission of the hearsay statements. In an opinion by Judge Mike Keasler for the eight-judge majority, the CCA concluded that evidence of guilt was sufficient to sustain the verdict, but that the inclusion of the hearsay statements was damaging. "While the totality of the evidence is legally sufficient to sustain Payne's capital murder conviction, it was certainly not overwhelming," Keasler wrote. "The jury's verdict was primarily supported by the cumulation of arguably weak circumstantial evidence. There were no eyewitnesses; nor was there forensic or direct evidence clearly linking Payne to the deaths," he continued. "In the absence of direct evidence, establishing Payne's motive to kill Nichole" was critical to the state's case. Thus, the friend's statements Рthat Payne had threatened to kill her and that the friend should "avenge" Nichole's death should anything happen to her Р"were among the most inculpatory pieces" of evidence.

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