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Court Considering Whether Pitonyak Deserves New Trial

Gruesome slaying in West Campus revisited by federal jurists
Jordan Smith, 12:38pm, Tue. Aug. 27, 2013
Jennifer Cave

Should Travis County prosecutors have turned over to defense lawyers for Colton Pitonyak, convicted in 2007 of the gruesome murder of Jennifer Cave, evidence that another person claimed responsibility for the crime? And even if prosecutors should have done so, would that have made a difference to jurors who sentenced Pitonyak to 55 years in prison?

Those are among the questions a three-judge panel of the 5th U.S. Circuit Court of Appeals will be asked to decide in the wake of a hearing this morning to determine whether Pitonyak should be granted a new trial.

Pitonyak's friend, Cave, was found murdered and dismembered – shot and then stabbed repeatedly, left in the bathtub with a rug half covering her, her head and hands severed and wrapped in plastic next to the toilet – inside his West Campus apartment on Aug. 18, 2005, by Cave's mother Sharon and her then-fiancĂ© Jim Sedwick. As it happened, Pitonyak had fled to Mexico the day before with another friend, Laura Hall, with whom he spent five days south of the border before being picked up by U.S. marshals and returned to the U.S. Phone calls and text messages to Hall were used as evidence against Pitonyak, as was evidence that he'd made a run to a hardware store the morning of Aug. 17 where he purchased a hacksaw, rubber gloves, and cleaning products.

Pitonyak testified at trial that he did not remember shooting Cave. Pitonyak, a former honor student, had been on a downward spiral of dealing drugs and abusing both drugs and alcohol. The night that Cave was killed he was in the middle of a multi-day bender. Pitonyak also testified that it was Hall who devised and directed the plot to dismember Cave's body. At her trial, Hall's defense argued that she was under Pitonyak's spell and didn't devise anything, but rather went along with his scheme because she was afraid of him. Ultimately she was sentenced to 10 years for hindering apprehension and tampering with evidence.

On appeal, however, Pitonyak's attorneys have argued that Travis County prosecutors failed to disclose before his trial information recorded in Hall's jail records by a jail counselor noting that Hall told other inmates she was responsible for the murder and bragged that she would get away with it while Pitonyak would languish in prison. Before a three-judge panel of the Fifth Circuit sitting this morning in Austin, Chris Perri, who with Joe Turner represents Pitonyak, argued that the failure to turn that information over to Pitonyak's defense is a clear violation of Brady v. Maryland, which requires the state to release exculpatory evidence.

A lawyer for the state argued that prosecutors don't have a duty to turn over notes made by a medical professional and that the notes in question would be protected by federal medical privacy laws, Deputy Solicitor Andrew Oldham argued to the panel. It isn't even clear that prosecutors would have had access to those notes, which were made as an entry into an electronic record detailing Hall's stay at the county jail and held by Travis County Sheriff's Office employees, he said. And there is evidence that the TCSO has already successfully quashed in state court a subpoena from the D.A.'s office seeking access to the records based on the fact that they would be protected medical records.

What case sets precedent for the proposition that "mental health providers" are to "turn over all statements" of an accused person as discovery, Judge Priscilla Owens asked Perri. "This is not a mental health issue," Perri responded. Perri told Judges Owens, Patrick Higginbotham, and Leslie Southwick, that Oldham was, at best, being disingenuous with the panel: The motion to keep secret the TCSO records was filed by the state against his and Turner's attempts to gain access to the broader jail file after being tipped off by an insider – a "good samaritan...ticked off about the unfairness" of Pitonyak's trial – that the information about Hall's in-jail admissions were among information contained in official records.

Perri said that the state's argument that determining whether information should be released depends upon who made each entry into a particular record shifts the prosecution's burden under Brady to the individual law enforcement employees who make additions to an official report to find and release to the defense exculpatory, impeaching, or mitigating evidence in the state's possession.

And it is clear that prosecutors Stephanie McFarland and Bill Bishop found out that Hall had been talking to inmates and making statements that inculpated herself in the grisly crime – confirmed by the fact that they called as a witness at Hall's trial her former cellmate, Henrietta Langenbach, who testified that over a three-week period Hall made several incriminating statements, including that mutilating Cave's body was her idea. That indicated that it was "reasonably foreseeable" to the state that Hall "can't keep her mouth shut," and had likely made additional incriminating statements – such as those Pitonyak's team has only more recently discovered, Perri said. (Notably, this is not the first time prosecutors connected to the Cave murder have been accused of hiding evidence.)

Moreover, prosecutors knew that inculpating Hall for the crime would have been a viable strategy for Pitonyak's defense – an idea they pointed out in an article they penned for the Texas District and County Attorneys Association in mid-2007. Prosecutors "had to consider Hall a wildcard," reads the article. "She and Pitonyak's relationship appeared to be one-sided: Laura was in love or obsessed with Pitonyak, a feeling he did not appear to return," McFarland and Bishop wrote. "We anticipated that she would be called by the defense and take the Fifth, but we could not be certain."

In short, argued Perri, the state had a duty to search through the jail records for all instances of inculpatory statements by Hall and were required to make those available to the defense and not simply to "close their eyes."

In response, Oldham argued primarily that there is not "one scintilla of evidence" that prosecutors were actually able to access all parts of the record, and he continued with the idea that these specific notations made by a group counselor at the jail would be protected medical records. Even so, had the records been released, he said that Perri has not demonstrated that "every single fair-minded" juror sitting in judgement of Pitonyak would be swayed to think anything more than that Hall had a penchant for braggadocio. Indeed, he noted, Pitonyak actually confessed to shooting Cave. But that was not an unequivocal confession, Judge Southwick pointed out; Pitonyak conceded that he "must have" shot Cave because he's been told he was the only one in the apartment, but said that he didn't actually remember the event.

Ultimately, however, Oldham pointed out that the state courts and the federal district court have rejected Pitonyak's claims and bid for a new trial – and each denial was completely reasonable given the facts, he said. "Even if we try to turn this case into a whodunnit," it was "reasonable for the state court to conclude that Colton Pitonyak did it" and that Hall is nothing more than a braggart.

The court has no deadline to rule.

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