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http://www.austinchronicle.com/news/2013-03-08/death-watch-fifth-circuit-spanks-cca-prosecutors/

Death Watch: Fifth Circuit Spanks CCA, Prosecutors

By Jordan Smith, March 8, 2013, News

On Feb. 27, the notoriously hard-line 5th U.S. Circuit Court of Appeals rebuked the Texas Court of Criminal Appeals, overturning the conviction and death sentence of a Tarrant County man on the row for a 2001 robbery-murder.

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. 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. He was indicted for capital murder, 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 was confusion: "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," reads the court's opinion. One witness testified that she didn't see who did the shooting, while others wavered before selecting Gongora – including a witness who was indicted for the crime, but given a plea deal for 23 years and a promise that he would not be prosecuted for a second shooting.

Over ongoing defense objections, prosecutors repeatedly pointed out that Gongora failed to take the witness stand. The trial judge declined to grant a mistrial and later rejected Gongora's direct appeal. The CCA also rejected Gongora's argument that the constant comments violated his Fifth Amendment protections, saying the comments were "not so blatant" that they would have prejudiced the jury. The Fifth Circuit seemed none too amused.

Not only was the CCA wrong, the Fifth Circuit ruled, but to "conclude otherwise empties all meaning of this cornerstone of rights upon which our criminal justice system rests. Its very centrality renders it a primer rule – etched in the minds of all players in a criminal case. ... Repeated and direct violations are both inexplicable and inexcusable." 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.

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