Court Weighs New Trial For Pitonyak

Colton Pitonyak at his 2007 trial (Photo by Jana Birchum)

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

Those are among the questions a three-judge panel of the 5th U.S. Circuit Court of Appeals will answer to determine whether Pitonyak should be granted a new trial.

Pitonyak's friend, Cave, was found murdered and dismembered inside his West Campus apartment on Aug. 18, 2005, by Cave's mother Sharon and her then-fiancé 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 drugs and alcohol. The night that Cave was killed he was in the middle of a multiday bender. Pitonyak also testified that it was Hall who devised and directed the plot to dismember Cave's body. Hall 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 5th Circuit in Austin Tuesday morning, Chris Perri, who with Joe Turner represents Pitonyak, argued that the failure to release that information 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, Deputy Solicitor Andrew Oldham, 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. 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, Oldham 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 Owen asked Perri. "This is not a mental health issue," Perri responded, telling the panel that Oldham's argument was, at best, disingenuous.

Oldham argued 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.

The court has no deadline to rule.

For more on Tuesday's hearing, see austinchronicle.com/newsdesk.