Annals of Law and Order

Two homicide cases, two convictions. Yet in each case: no body, no weapon, no physical evidence of murder – only circumstantial evidence to suggest that a crime might have occurred. Combining two otherwise unrelated cases, the Texas Court of Crim­in­al Appeals ruled unanimously in June that "circumstantial evidence can alone be sufficient to establish guilt." Whatever its merits in these particular Central Texas cases, the CCA ruling appears to open the gate to broader prosecutorial discretion, as well as providing an invitation to juries to employ speculation to fill gaps in the actual evidence.

Rex Nisbett was prosecuted for the murder of his wife Vicki Lynn Nisbett, who disappeared Dec. 14, 1991 and was never heard from again. The Nisbetts were in the process of a bitter divorce, and on the night she disappeared, Vicki was expected at a Christ­mas party, but never arrived. George De La Cruz was prosecuted for the murder of his estranged wife, Julie Gonzalez, who disappeared March 26, 2010. The couple was separated and arguing over a divorce that De La Cruz refused to grant. On the morning she disappeared, Gonzalez was expected to pick up their child at De La Cruz's house. He claimed she told him she was leaving town for the weekend, and – other than a few text messages and posts which may have been forgeries – she was never heard from again.

In a rare procedure, the CCA consolidated the cases – in order, the court said, "to address the appropriate analysis when the victim's body and the murder weapon are not found." In Nisbett's case, a panel of the Third Court of Appeals had overturned his 2014 Williamson County conviction because of "insufficient evidence" ("An Unknown Manner and Means," Jan. 27, 2017); an overlapping panel of the same court had affirmed the 2015 Travis County conviction of De La Cruz. The CCA reaffirmed Nisbett's original conviction, and affirmed that of Delacruz, writing, "the cases are similar and should have been decided the same way."

Based on the court records, the circumstantial evidence in these two cases was considerable, and the initial convictions are at least understandable. As longtime defense attorney Keith Hampton told the Chronicle, homicide investigators routinely investigate a victim's "significant other" for possible involvement. "The problem is," he continued, "that 'a good place to start' congeals into an outright presumption, which inevitably blossoms into an outright doctrine. ... So the remaining task becomes a matter of building a case against the person you 'knew' all along was guilty."

That problem is compounded when the state can't actually prove that a homicide has occurred: no body, no weapon, no confirmed crime scene. Keith Lauerman, by coincidence the defense attorney at trial in both cases, said he was "shocked" by the CCA's decision. "I felt the opinion lowered the burden of proof on the prosecution," he said. "It seemed to allow juries to use their imagination instead of relying on the evidence." Linda Icenhauer-Ramirez, De La­ Cruz' appeal attorney, said the prosecution hadn't met its burden to show a cause of death "or even if there is a death," and said she would be filing a motion for a rehearing.

Nisbett wasn't brought to trial in his wife's disappearance until 2014 – two Wilco district attorneys had declined to prosecute, until Jana Duty decided to move forward, although she too was gone by the time of the Wilco appeal to the CCA. In her brief for Nisbett, attorney Kristen Jernigan told the CCA that the prosecutors are "asking this Court to adopt a new standard by replacing the statutory elements of the offense of murder with speculation and conjecture." Jernigan told the Chronicle she is "shocked" by the consolidation of two entirely unrelated cases and by the decision, and will also be moving for a rehearing. "The Court has legislated from the bench," she said, "by lessening the burden of proof for the offense of murder in Texas."

Hampton, while not involved in these cases, said he was reminded of a California case in which a purported homicide "victim" turned up alive years later – just before the convicted "murderers" were about to be executed. He believes the CCA ruling continues a recent trend of lowering the standards of evidence, and that prosecutors are even taking advantage of the growing number of post-conviction exonerations. "There is a palpable expectation that is ... insinuating itself into judicial review: Post-conviction litigation can cure wrongful convictions, so let's lower the threshold for reversal and see what happens."

Jernigan's appeal brief rejected the prosecution's implication that "motive, opportunity, and suspicion are sufficient to support a murder conviction." The CCA, in an opinion that often reads as a brief for the prosecution, responded: "It is not necessary that the evidence directly prove the defendant's guilt; circumstantial evidence is as probative as direct evidence in establishing a defendant's guilt, and circumstantial evidence can alone be sufficient to establish guilt." Yet it would seem before a prosecutor can prove guilt, she should be required to prove a crime has in fact occurred.