Benchslap: 5th Circuit says CCA 'unreasonably applied' 5th Amendment case law

At the Austin Chronicle, the indefatigable Jordan Smith reported on three recent Texas capital murder convictions overturned by appellate courts. Two of them were discussed on Grits last week, but the third one out of the Fifth Circuit was also notable. They found that a 5th Amendment violation the Texas Court of Criminal Appeals had deemed "harmless error" was not, in fact, so harmless. Instead, the appellate court declared that the CCA "unreasonably applied the clearly established federal law." Moreover, "The evidence of guilt in this case was not overwhelming, and there was substantial evidence supporting acquittal." Judge Priscilla Owen, unsurprisingly, dissented. See Smith's account of the case below the jump:

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.