Death Sentence Won’t Be Reinstated by High Court

     (CN) – The Supreme Court on Monday refused to reinstate the death penalty for a defendant freed after prosecutors commented on his failure to testify at trial.
     Lawyers for Rick Thaler, director of the Correctional Institutions Division of the Texas Department of Criminal Justice, asked Justice Antonin Scalia to recall and stay the 5th Circuit’s order overturning Nelson Gongora’s death sentence for capital murder.
     Prosecutors in Gongora’s 2003 trial suggested that his decision not to testify indicated guilt, and he was convicted of murdering Delfino Sierra while robbing him.
     The federal appeals court in New Orleans overturned the conviction, ruling that Gongora had been denied a fair trial by a prosecutor’s comments during closing statements.
     One of the prosecutors had asked the jury, “Who should we go ahead and present to you? Should we talk to the shooter?”
     After the judge sustained an objection by the defense counsel, the prosecutor tried to clarify: “Let me say this. And 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?”
     Defense counsel again objected, calling the explanation “a continuation of the previous comments.”
     The court overruled a motion for retrial, and on review, a federal judge determined that the prosecutor’s comments, while unconstitutional, did not alter the jury’s verdict.
     In its 2-1 reversal, the 5th Circuit panel ruled that the “numerous and blatant” comments had, in fact, prejudiced the jury.
     “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,” the court wrote. “The judge repeatedly cautioned the prosecutor, yet the prosecutor further highlighted the reference by persisting in his train of ‘who you would expect to hear from’ argument.”
     The 5th Circuit vacated his conviction and ordered that he be released.
     A subsequent motion for an en banc rehearing divided the court, which ultimately declined to rehear the case on a 9-6 vote in August.
     Dissenting Judge Jerry Smith said the three-judge panel should have deferred to the state court’s conclusion that the error was harmless. By refusing to rehear the case, the full court “has declined to disturb a flagrant grant of relief that contravenes the principles of habeas review unambiguously articulated by the Supreme Court,” Smith wrote.
     Justice Scalia denied Thaler’s appeal without comment Monday.

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