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Appeals court rules Crispin Harmel can be retried for capital murder

The Texas 3rd Court of Appeals ruled Wednesday that a man can be retried in a 2009 capital murder case that led to Williamson County’s district attorney spending a few days in jail.

The court ruled that Crispin Harmel, whose first trial in 2014 ended in a mistrial when the judge ruled that prosecutors didn’t share evidence with the defense, won’t face double jeopardy — being prosecuted twice for the same offense — if he is tried again.

One of Harmel’s attorneys, Ryan Deck, said Wednesday he couldn’t comment on the ruling because of a gag order in the case. Williamson County District Attorney Jana Duty and state District Judge Rick Kennon didn’t return requests for comment.

Duty spent a few days in jail during August 2015 for violating Kennon’s gag order by speaking to an American-Statesman reporter.

Defense attorneys have the option of appealing the ruling to the Texas Court of Criminal Appeals.

One of Harmel’s defense lawyers, Kristen Jernigan, had appealed the case in September, saying Duty had intentionally caused the mistrial by withholding evidence.

Double jeopardy bars a retrial when the prosecutor’s conduct was intentional in provoking the request for a mistrial.

Harmel is accused of strangling Jessika Kalaher in 2009 after following her out of a Wal-Mart in Cedar Park. He was released from jail May 9, 2014, after the mistrial was declared.

Bob Phillips, a Georgetown criminal defense attorney for more than 30 years, said Wednesday that it is “rare for an appellate court to determine double jeopardy has attached just because a mistrial has been declared.”

The court’s ruling Wednesday said Duty intentionally withheld evidence connected to a Wal-Mart video during Harmel’s first trial. But the ruling also said there was “nothing in the record, however, to indicate that the State acted with the intent to provoke Harmel to request a mistrial in order to avoid an acquittal or for any other reason.”

Defense attorneys had asked during Harmel’s first trial for a copy of a surveillance video with time stamps, the ruling said. The video was crucial to the trial because there was no DNA evidence and no weapon was found.

The prosecutors figured out during the trial how to display the time stamps on the video but didn’t share that information with defense attorneys until playing the video during the trial, the 3rd Court of Appeals ruling said.

The time stamps were at odds with the defense’s timeline of events.

Duty later admitted in a district court hearing that “she withheld this information from defense counsel for a variety of reasons, including her perceived mistreatment by defense counsel,” according to Wednesday’s ruling.

The ruling also said that when an appeals court reviews a double jeopardy claim, it “will view the evidence in the light most favorable to the trial court’s ruling, understanding that the trial court is in the best position to make the evaluations necessary to this type of decision, particularly where a prosecutor’s state of mind is concerned.”

Kennon, who presided over Harmel’s first trial, had ruled in September that, even though Duty had withheld evidence in the case, Harmel could be retried.

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