A man sentenced to death for the 2001 murder of another man in Fort Worth has had his case overturned by a federal appeals court.
The 5th U.S. Circuit Court of Appeals agreed with attorneys for Nelson Gongora that prosecutors in his 2003 murder trial should not have suggested to the jury that Gongora's decision to not testify indicated his guilt.
In their decision Wednesday, the 5th Circuit judges wrote that repeated comments by the Tarrant County prosecutor about Gongora's lack of testimony violated his right to a fair trial. The 5th Amendment guarantees criminal defendants the right to not testify at trial and in 1965, the U.S. Supreme Court ruled that this meant a prosecutor could use a decision to not testify as evidence of guilt. The lead prosecutor in Gongora's case, J.D. Granger, did not return a call requesting comment.
Gongora remains on death row while the Tarrant County district attorney's office decides whether to try him again. "It's premature to determine how we're going to proceed," said Melody McDonald, the office's spokeswoman.
Gongora, who was 22 at the time of the murder, was one of six men riding in a van one night in April 2001. According to court documents, the group saw Delfino Sierra walking on the street and decided to rob him. The van’s driver pulled over, and Gongora and another man exited and demanded money from Sierra, who started running and was shot in the head.
The driver initially told police that someone other than Gongora shot Sierra. But he later identified Gongora as the shooter, saying he had lied before because he was afraid of Gongora, according to court records.
After his arrest, Gongora admitted to police that he had exited the van to rob Sierra. He said that he heard shots and saw the man lying on the ground, but that he did not fire the shots.
Prosecutors said the men were in a criminal street gang called Purp Li’l Mafia, according to court records, a statement that Gongora’s current attorney, Danny Burns, denies.
Gongora's co-defendant, Albert Orosco Jr. was convicted of murder in the case and is currently serving a 23-year sentence. Prosecutors didn't seek the death penalty for Orosco. A friend of the men involved testified at Gongora's trial that he saw Orosco shortly after the murder with a .38 caliber handgun in his waistband. A bullet from a .38 caliber gun was found to have killed the victim.
Many of the other men in the van on the night of the murder took the stand at Gongora’s 2003 trial, but Gongora did not. During closing arguments, the prosecutor said to the jury, “Who should we go ahead and talk to? Who should we go ahead and present to you? Should we talk to the shooter?”
Gongora’s lawyer objected, accusing the prosecutor of trying to sway the jury against Gongora even though he had the right to not testify.
The judge agreed and told the jury to disregard the comment. Rephrasing his statement, the prosecutor said, “I don’t want to give the wrong impression in any sort of way. We’re asking who do you expect to take the stand? Who do you expect to hear from, right?”
Gongora’s lawyer objected again. The judge agreed again. Then the prosecutor told the jury, “I’m not talking about that, do you want to hear from him, because you can’t do that.”
Gongora’s lawyer objected once again, but the judge allowed the comment.
The Court of Criminal Appeals, Texas’ highest criminal court, wrote in 2006 that the prosecutors’ comments were “inartful and often confusing,” but did not violate Gongora’s rights. A federal district judge said in 2007 the prosecutor should not have made the comments, but that they did not affect the jury’s decision.
On Wednesday, however, the 5th Circuit, which reviews appeals from all Texas death penalty cases, wrote that the prosecutor’s comments were “repeated and direct violations” which were “both inexplicable and inexcusable.” In context, the court said, the comments might be read as the prosecutor’s attempt to correct his initial mistake, but over time they served to “reinforce the impression of Gongora’s guilt.”
“Gongora was denied a right to a fair trial,” the court concluded.
Judge Priscilla Owen dissented, arguing that the prosecutor’s comments had “little if any, bearing on Gongora’s guilt,” because he admitted to trying to rob the victim.
Burns, Gongora's attorney, said he hopes a new trial would allow jurors to see that Gongora had no real involvement in the murder, because he was charged as being a conspirator, but the murder happened without a preconceived plan. “How can you be a conspirator without a conspiracy?” he said.