Colton Pitonyak, convicted of killing Jennifer Cave in 2005, will have to appeal to the U.S. Supreme Court for a last chance at a new trial after the 5th U.S. Circuit Court of Appeals on Wednesday denied his bid.
In a rare court review, which came after six years of similar unsuccessful petitions, a three-judge panel affirmed the decision of a lower court that found prosecutors had not improperly withheld from his original defense team incriminating jailhouse statements by his accomplice.
Assistant District Attorney Allison Wetzel hailed the ruling, saying “every judge who has looked at this case has agreed that the DA’s office followed the law.”
But Pitonyak’s defense lawyers say they plan to take the issue to the higher court as their main argument went unanswered. Prosecutors might not have known about the record, but they had an obligation to search for it, said Chris Perri, one of the attorneys.
“I think that this is a huge step back for justice and criminal defendants everywhere,” Perri said. “Now prosecutors have an incentive to close their eyes and ears even when they have reason to believe there might be exculpatory evidence.”
The panel said there was no proof that a mental health counselor, Carrie Hoffman, who filled out the jail record, alerted investigators to her notation, which said an inmate had reported that Laura Hall “confessed to the murder of Jennifer Cave.”
It also found there was substantial evidence that no other person but Pitonyak could have committed the crime.
“While the materiality of Hoffman’s notation presents a difficult question, we cannot say that the state court was unreasonable in finding Hoffman’s notation to be immaterial to Pitonyak’s guilt or punishment,” according to an opinion filed Wednesday.
Cave, a 21-year-old Corpus Christi native who had just earned a job as a legal assistant in Austin, was found dead Aug. 18, 2005, in the bathroom of Pitonyak’s West Campus apartment — one of the city’s most infamous murder cases.
Prosecutors said Pitonyak, 30, shot and killed Cave and later called Hall, his friend and former lover, who helped him mutilate the body.
Hall, 29, was found guilty of tampering with evidence and initially sentenced to five years in prison in a 2007 trial. She is now serving 10 years after the 3rd Court of Appeals in Austin ordered a new sentencing hearing, ruling that prosecutors improperly suppressed information that a cab driver who testified during her punishment phase had not been able to identify her in a photo lineup.
In oral arguments before the 5th Circuit in late August, Pitonyak’s new lawyers, Perri and Joe Turner, told judges that the jailhouse record was the “golden nugget” connecting Hall to the 2005 slaying and said prosecutors had a duty to search for the evidence as soon as they learned Hall was talking to inmates about the case.
But Andrew Oldham, deputy solicitor general of the Texas attorney general’s office, argued that the counselor, an employee of the Travis County sheriff’s office, was not part of the prosecution team, had not been part of the investigation and did not share the record with prosecutors or law enforcement.
Oldham said the record would have been immaterial regardless, given the overwhelming amount of evidence — such as phone and text records between Pitonyak and Hall — that showed Pitonyak was alone when he committed the crime.
The judges sided with the attorney general’s office, finding that in addition to an “amnesic admission of guilt,” Pitonyak had testified to recalling Hall arrived “at his apartment the morning of Aug. 17 after he found Cave’s body in his bathtub; that Hall asked why Cave’s purse was in Pitonyak’s living room; and that he led her to the bathroom to show her Cave’s body.”
“Moreover, undisputed telephone records show that Pitonyak called Hall at 5:59 a.m. and that they spoke again at 6:57 a.m. and 7:24 a.m., corroborating Pitonyak’s testimony that Hall was not present at the time of Cave’s death,” the opinion states.
Pitonyak’s attorneys had sought a retesting of several DNA items at the scene, including a pistol, knives and a machete. But they have since withdrawn their request, according to Travis County court records.
Wetzel said Pitonyak killed Cave eight years ago. “He testified under oath at trial that he killed her, and 12 jurors agreed,” she said. “This should be the end of the road.”