As of this Thursday, Jan. 26, the State Prosecuting Attorney, the office which represents the state in the Court of Criminal Appeals, has 21 days to appeal the recent ruling in the 3rd Court of Appeals that the murder conviction on Rex Nisbett be overturned, and that Nisbett be acquitted of the murder of his estranged wife, for which he was sentenced to 42 years in prison. Anything but a successful appeal to the CCA would affirm the 3rd Court's judgment, ordered Dec. 15, 2016, and reopen as a cold case the 25-year mystery of what happened to Vicki Nisbett, whom nobody has seen or spoken to since Dec. 14, 1991.
Nisbett's case was tried in Williamson County, and was to serve as a touchstone conviction for the district attorney at the time, Jana Duty. It was one of the first major cases brought to the grand jury under Duty's administration; she had run in the 2012 primary against prosecutor John Bradley as a change candidate who could close cold cases and carry out justice. Bradley, WilCo's D.A. for a decade, saw his reputation crumble when news broke that he vigorously fought against the DNA retesting that eventually exonerated Michael Morton of his wife Christine's murder in 1986. Duty planted campaign signs with red bandannas – a bloodstained allusion to the blue bandanna in evidence that freed Morton – and urged voters to support a candidate who believed in "No More Michael Mortons." As D.A., Duty established the county's Cold Case Unit to help close unsolved cases.
Duty took office in January 2013, and by February had reopened investigations into Vicki's disappearance. The county had looked into the case sporadically since the murder, but never had enough evidence to take Rex to a grand jury. Late that March, with the high-profile second Morton trial ongoing (the one that convicted Mark Alan Norwood), Duty announced she'd secured a murder indictment against Rex. "It is important to me to help families who have suffered such a tragic loss," Duty said in a press statement, one of three she'd post online during her term. "I want to help these families find answers and find justice so that they can eventually find peace."
The Nisbett case was an unusual one: a cold case from the early Nineties without any trace of a dead body. Vicki's disappearance yields no verifiable crime scene, no murder weapon, and no motive. Simply, she cannot be accounted for after Dec. 14, 1991, at around 5pm. She planned to attend a company Christmas party at the Driskill Hotel with her friend Julie Coen-Tower, but Coen-Tower said she never made it. The next morning when they spoke again, Rex told Coen-Tower that Vicki never came home.
Vicki and Rex were high school sweethearts with three children, but by 1991 their relationship had soured, and that fall they separated. Vicki moved to an apartment at Anderson Mill with the kids; Rex had trouble settling in. With Christmas approaching, Vicki agreed to let him stay at her apartment with the kids.
Cohabitation was not easy. Vicki filed for divorce that November. She'd begun seeing other men. In November, Rex was arrested on a misdemeanor assault charge after coming home to find Vicki with a new boyfriend. According to Jerry Fryer Jr., the Nisbetts' pastor, who testified at the trial, Vicki was "extremely afraid, crying, with her head down" when the two met days before she disappeared.
According to appeals briefs filed by the state and Nisbett, Vicki's last known hours were spent arguing with Rex and making plans for the evening with Coen-Tower. The two would drive to the Driskill together, then Vicki would meet Wayne Castleberry, a man she'd been seeing. Coen-Tower called at 2:30pm that day; Vicki told her she and Rex had already begun arguing.
Vicki was more hysterical when Coen-Tower called back at 5 o'clock. Rex had choked her, she said, during the day's ongoing argument. Coen-Tower told Vicki to leave her apartment and come over. But that never happened. When Coen-Tower called back at 5:30, Rex said she'd already left. When she never arrived, Coen-Tower called again. Rex said she must have gone straight to the Driskill. Coen-Tower never saw her. Castleberry testified he didn't either.
Rex filed a missing persons report on Dec. 16. David Proctor, a patrol deputy, showed up. He'd been to the Nisbett apartment before; he testified that the place was cleaner than on previous visits. He said Rex was "very forthcoming" when he came over for questioning: The only altercation that day had been an argument, Rex said. He downplayed the fact that he'd choked her, alleging Vicki had charged at him, and he pushed her away. He told Proctor that Vicki left the apartment wearing a black jacket and black pants. He later hinted that Vicki may have run off with another man. "She had done that before," he claimed. (At one point later in the investigation, Rex hinted that she may have visited friends in Galveston.)
The investigation picked up six weeks after Vicki's disappearance when Rex got evicted from her apartment. Sheriff's deputies got permission from the landlord to look around. They focused on Vicki's bedroom, spraying luminol (which reacts to iron, found in blood) and found traces of DNA on various parts of the apartment: pieces of sheetrock, carpeting, a slab of carpet padding. Before the 2014 trial, five items were tested and showed small traces of Vicki's DNA. There were inconsistencies: a section of the closet's carpet, which held not only Vicki's DNA but also that of another woman; a stain on some carpet from near the door, which registered so small that Jane Burgett, a forensic scientist with the Department of Public Safety, couldn't identify the source of DNA. Burgett said during trial that the amount of blood found in the bedroom was "very hard to see," and that there was not enough blood to indicate that a person had actually died.
There was also a faint handprint by the doorway: left in a "brownish-reddish substance," wrote 3rd Court Justice Melissa Goodwin. Tests showed the handprint belonged to Rex. Other tests showed that the substance was likely blood. Duty was in awe of the handprint, she'd write in a post-conviction essay for The Prosecutor, titled "No body, no murder? Not necessarily."
"How many times in the life of a prosecutor does she get a case with a handprint in human blood?" she wrote.
The conflation of circumstantial evidence reinforced investigators' belief that Vicki's bedroom was a crime scene, and further supported Rex's standing as a primary suspect. Officials considered him nervous during investigations. He would show up at the apartment while deputies looked around to insist they wouldn't find anything. Captain Richard Elliott invited him to the sheriff's office; Rex agreed, but sent an attorney there in his place. Investigators thought he'd adopted a consciousness of guilt from the moment Vicki went missing.
On the night in question, Rex asked his neighbor if he could borrow his car for a few hours – and also asked that the neighbor watch his kids. When he came back, the lock on the trunk was broken and there'd been new damage to the two headlights. Detectives eventually searched the neighbor's car and found nothing suspicious.
The morning after, at about 7:30am, Rex called Coen-Tower to ask where Vicki was. Coen-Tower flipped on him, asking what he had done with her. Rex hung up. Later that morning, he called Coen-Tower again, asking for help getting medicine for one of the kids. She saw inside when she came over. There'd been a shrine built for Vicki on the table.
Strange details continued to mount. Rex took several months to contact Vicki's parents, and even then still forbade them from seeing their grandchildren – telling Vicki's mother that he couldn't cater to visits because he had to protect himself. Rex also told Vicki's mother that he had hired an independent investigator to find Vicki. He said he'd paid the investigator $30,000 in cash. But he wouldn't name the investigator, and Vicki's parents never heard from one. Eventually, Rex began telling them he thought Vicki had been murdered and disposed of by Kenneth McDuff, a serial killer reportedly responsible for at least 14 murders, including six in Central Texas around the time Vicki went missing. (McDuff was eventually executed after being convicted for the murder of a woman he assaulted at a North Austin car wash on Dec. 29, 1991, whose body wasn't found until well after his trial.)
Investigators contacted Robert James, Rex's co-worker. He told them Rex once said he'd want to kill his wife if he caught her cheating, but conceded he would never actually do it: It wasn't the Christian thing to do, he'd said. They spoke with Vicki's brother, Mark Johnson, who had once gone to Rex's brother's property north of Austin, and noted large excavation holes there. He said Rex observed while they were on the property that you could bury a body in one of the holes and nobody would know. Officials eventually searched the property and found no trace of Vicki's body.
There was the cop in Cedar Park who saw Vicki's car bounding north on Highway 183. He ran a plate scan between 9:30 and 9:35pm that night; the car was registered to Rex and Vicki. The officer testified that he'd only partially seen the driver: They had short, dark hair, which applied to both Rex and Vicki. He could not recall if the driver was a man or a woman.
There was Kelly Misfeldt, a neighbor in Vicki's complex. Misfeldt told investigators he saw a woman he thought was Vicki standing in the parking lot one night two weeks after her disappearance. She was wearing a black jacket and black pants, and stood still, looking toward the complex, before eventually turning and leaving. Misfeldt said in a police statement at the time – and reiterated while on the stand – that he was "99 percent sure that it was her."
And then there was Diane Kagan, Vicki's co-worker, who saw Vicki's car at the H-E-B on Parmer and MoPac on Dec. 28, 1991, then came back on Jan. 3 to find it gone. She saw it again on Jan. 4, in the same location as before. It left again, then showed up in the same spot in February. Deputies asked Rex if they could search it, but Rex sought out his attorney. They eventually got a warrant: The only detail of interest was that the dome light had been yanked out.
Vicki was reported to the Missing Persons Clearinghouse. When the trial began, the organization maintained an active file for her. In 23 years, it had never received any hit of activity.
Five days of testimony yielded two days of jury deliberations. Jurors spent much of that time split – seven guilty, five not guilty – and had to refer often to clarifications from Judge Billy Ray Stubblefield. At one point, jurors asked if they could "convict on a lesser charge than murder." Late on the second day, after the jury had asked if they should pack in for the evening or plan on a long night trying to reach a consensus agreement, Stubblefield invoked an Allen charge – a legal statute that implores a jury to reach a consensus verdict.
Nisbett appealed to the 3rd Court. Appellate attorney Kristen Jernigan combated the language of his grand jury indictment. "The State was required to show that [Nisbett] intentionally or knowingly caused Vicki's death," Jernigan wrote. The state hung much of its argument on how Rex had choked Vicki, and his behavior after the murder, saying the circumstantial evidence and Rex's consciousness of guilt were enough to prove he murdered Vicki. Justice Goodwin raised issue with the original indictment, however, noting the uncertainty of charging someone of murdering another person "by an unknown manner and means." Without knowing anything about Nisbett's palm print – how it got there, or when – one couldn't conclude that Rex killed Vicki – or if she was even dead.
"There is no evidence, direct or circumstantial, to prove beyond a reasonable doubt that [Rex] caused Vicki's death," she wrote. "It is a wholly speculative argument to suggest that evidence of Vicki's disappearance somehow demonstrates that appellant caused her disappearance. Evidence of her disappearance is simply that: evidence of her disappearance. Such evidence does not constitute evidence of what – or who – caused her disappearance."
Oddly, it was McDuff's car wash murder that helped strengthen Rex's case. The state had argued that McDuff v. State established there need not be a body to prove a murder. However, that murder involved an accomplice (who sexually assaulted the victim), one who testified that McDuff at one point "struck her so hard that the blow sounded like a tree limb cracking and had sufficient force to knock her down and 'bounce' her off the ground," wrote Goodwin. A forensic pathologist established that the force of that blow could have been enough to kill her – unlike Rex's choking of Vicki, which provably didn't.
In December, Duty told the Austin American-Statesman she was "so disappointed" with the ruling. "The moral to this story for prosecutors across the state ... is don't bother trying murder cases where the suspect was smart enough to get rid of the body," she said. She told the local media that Williamson County would appeal the COA reversal. "The 3rd Court acted beyond their discretion," she said. But when her term expired, Duty had not filed anything. Shawn Dick, Williamson County's new D.A., declined to comment on this story. On Jan. 17, the State Prosecuting Attorney filed a motion for more time to consider an appeal to the CCA. "This office took responsibility for the case with little time left in the original 30 days [to appeal the 3rd Court ruling]," it wrote. SPA Stacey Soule later said the COA's reversal "may have been based on an erroneous application of the law."
In three weeks, Rex Nisbett finds out whether any attorneys beyond Jana Duty believe that to be the case.
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