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On February 27, 2013 the federal Fifth Circuit Court of Appeals threw out the conviction of Texas capital defendant Nelson Gongora upon finding that the prosecutor in his case had pointed to Gongora’s failure to testify at trial as evidence of his guilt.

The Court ruled,

We find that the extraordinarily extensive comments on Gongora’s failure to testify resulted in actual prejudice, and we GRANT Gongora’s habeas petition and vacate his conviction.
 

Gongora was charged with murder in the course of an armed robbery and received the death penalty. At trial the jury heard “sharply conflicting evidence” about whether Gongora shot the victim or was merely a participant in the robbery and did not anticipate the murder. Gongora did not take the stand.

Under the law, a prosecutor may not treat a defendant’s exercise of his right to remain silent at trial as substantive evidence of guilt. Griffin v. California, 380 US 609 (1965).

Yet during closing arguments at the guilt-innocence phase of the trial, the prosecutor repeatedly asked the jury,

Who do you expect to hear from?
 
Nelson Gongora, the shooter. That’s the person on trial. Who should we go ahead and present to you? Should we talk to the shooter?
 

Indeed, the district court found that “the prosecutor’s remarks on Gongora’s failure to testify were numerous and blatant.” While the prosecutor informed the trial judge that his intention was to draw attention to the failure of another potential witness to testify, the Fifth Circuit found that the remarks would have naturally been construed as comments on the defendant’s silence.

In the guise of clearing up what his earlier comments meant, the prosecutor continued to make comments relating back to the fact that Gongora had not testified… This factor weighs against a finding that the error was harmless.
 

The Court  suggested that the prosecutor was attempting to strengthen his case by comparing the testimony of the co-conspirators, who gave statements fingering Gongora, with the lack of testimony from Gongora himself.

The Court found that the physical evidence and unbiased eyewitness testimony didn’t support the state’s case regarding Gongora, making the impact of the prosecutor’s statements about his failure to testify even more prejudicial to his defense. Gongora’s conviction was vacated.

Read the full opinion here.

According to the Texas Tribune, Gongora remains on Death Row while the state decides whether or not to retry him.

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