US court reverses gang leader's murder conviction

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Associated Press

Posted on March 2, 2013 at 2:02 PM

HOUSTON (AP) — A divided federal appeals court panel has thrown out the capital murder conviction of a former Fort Worth street gang leader sentenced to die for gunning down a Dallas father of four during an attempted robbery in 2001.

Nelson Gongora's constitutional rights were violated by a Tarrant County assistant district attorney who told jurors at Gongora's 2003 trial that his refusal to testify implied he was guilty, a three-judge panel of the 5th U.S. Circuit Court of Appeals said Friday in a 2-1 decision.

"The extraordinarily extensive comments on Gongora's failure to testify resulted in actual prejudice," the judges found.

The U.S. Supreme Court has held that a defendant's silence can't be treated as evidence of guilt. The 5th Circuit majority panel called it a "cornerstone of rights upon which our criminal justice system rests."

"Single episodic violations will creep in, but repeated and direct violations are both inexplicable and inexcusable," Judges Carl Stewart and Patrick Higginbotham wrote.

In a dissent, Judge Priscilla Owen said the majority opinion "seriously misapprehends what constitutes actual harm."

"At the very least, Gongora was guilty as a party to capital murder," she wrote.

Gongora was convicted of killing Delfino Sierra, 36, outside a quinceanera party Sierra was attending with his family in Fort Worth. The appeals court gave Tarrant prosecutors six months to retry Gongora, 33, resolve the case with a plea agreement or some other action or release him from death row, where he's been imprisoned since June 2003. He has not had an execution date set.

Tarrant County District Attorney's office spokeswoman Melody McDonald said Friday it was too early to say how prosecutors would respond to the court order.

Attorneys for Gongora did not immediately respond to messages left by The Associated Press.

Authorities said Gongora was a leader in a Fort Worth street gang called Puro Li'l Mafia, or PLM, and was in a van with several friends when they saw Sierra, who had left the party to get some air, and decided to rob him.

According to court records, Gongora, then 21, and one of his friends jumped from the van, ran toward Sierra and demanded his money. Sierra started running and was fatally shot in the head. Court records show the assailants returned to the van and drove away with Gongora saying he did what he "had to do" and warning his companions to be quiet about it. Then they went to his house for a cookout.

An anonymous tip to police led to the van owner and then to Gongora. In a written statement to police, he acknowledged participating in the attempted robbery but said he didn't know who fired the shots that killed Sierra.

The Texas Court of Criminal Appeals in 2006 upheld his conviction and death sentence and the U.S. Supreme Court later that year refused to review the case. A federal district judge denied new appeals in 2007, which then were taken to the New Orleans-based 5th Circuit.

Court records show Gongora's trial lawyer objected to prosecution remarks during closing arguments of the guilt-innocence phase about Gongora's failure to testify. The district attorney subsequently told jurors he wanted them to understand that Gongora had a 5th Amendment right to not testify.

Gongora's appeals lawyers argued the damage was done even though the trial judge instructed jurors that the fact Gongora had not testified could not be considered in their deliberations.

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