Episode 6: Wild Card
Haley Butler: It’s Sept. 16, 2005. One month after Jennifer Cave’s death in a jail just outside Austin, prisoners are in a therapy session. Travis County sheriff’s office employee Carrie Hoffman leads the therapy session and takes some notes for the record. One of the inmates tells counselor Hoffman that another inmate in the jail had confessed to a murder. The inmate says the person who confessed also said:
Tinu Thomas: (quote) “That whore deserved to die. She was just a dancer anyway.”
Haley: Another inmate speaks up at the therapy session. She says the same inmate had also confessed to her about the same crime. She says the inmate had no remorse. The inmate told her she was mad because her boyfriend had been cheating on her with the victim.
Tinu: (quote) “I do remember her saying that the only eerie part was the sound of cutting through the bone.”
Haley: The inmates were talking about Laura Hall. The victim she confessed to killing was Jennifer Cave.
Tinu: Laura Hall, the same woman who had fled the scene of a crime just a few weeks earlier and drove to Mexico with Colton Pitonyak sitting shotgun in her green Cadillac.
Haley: Laura had been arrested and is in jail with these inmates. She usually sits in on these therapy sessions too. But she had to skip this week’s session to go to mediation. Hoffman’s notes from that session are not used in Colton’s trial.
Tinu: His defense team didn’t know about them.
Haley: I’m Haley Butler…
Tinu: … and I’m Tinu Thomas, and this is the sixth episode of The Orange Tree. Earlier, you heard what happened in Colton’s trial and the stories people told on the stand.
Haley: As the media attention of the trial died down, Colton’s defense team has been continuing to fight his conviction. Since 2007, Colton has been able to file a number of appeals. In this episode we are going to explore three stories that Colton’s defense team uses in an attempt to get him a new trial, including the alleged jail confession you just heard from Laura Hall and more.
Tinu: Four years after Colton’s convicted of murder and given a fifty-five year sentence, his dad Eddie Pitonyak hasn’t given up. He’s hired new lawyers to try to get Colton out of prison. One of them is a young appellate lawyer and UT grad, Chris Perri.
Chris Perri: So I mean, I was just, I was 24. He was maybe a year or two younger than me. So I just really saw how this guy’s life is going to get completely upturned. And, um, I mean, of course if he committed the murder, yeah, I mean we have consequences, but just thinking about how horrible it would be to wake up and have this dead body in your bathtub and not know what the hell happened sounded like a nightmare and that just always fascinated from there, the story, the fling.
Haley: Perri works in Joe Turner’s law firm and gets access to counselor Hoffman’s therapy session records. Perri and Turner file a writ based on what happened in that session and how the counselor’s notes were handled. Writs are similar to appeals but are generally used when the defendant wants to bring up evidence that wasn’t presented in their original trial.
Perri: We need somebody to spearhead this writ. And I was like, well, I just graduated from my master’s. It’s May of 2009. Um, I love this case. I’ve always felt Colton was innocent and that he got railroaded in this trial, it felt like he got railroaded on the appeal. Let’s do the writ, prove he’s innocent and get him out.
Haley: The lawyers argue in their writ that the prosecutors in Colton’s trial had an obligation to find those notes from the therapy session. A Supreme Court ruling from the 1960s called “The Brady Rule” requires prosecutors to turn over any evidence that might be favorable to a defendant. Basically, Colton’s lawyers say the prosecutors were required by law to get any evidence that could clear Colton under the Brady Rule. They argue the prosecutors should have known there might be evidence in Laura’s jail file that could clear Colton, especially since the same people prosecuted both Colton and Laura. Colton’s other appeals lawyer, Joe Turner, argues it would have been easy for them.
Joe Turner: And she documented it in Hoffman, documented in the medical reports, which in fact were entered into the Travis County sheriff’s office computer, which they have access to and which they cooperate with the DA’s office all the time.
Tinu: Up to this point, the Pitonyaks haven’t been able to get any hearings in state courts.
Haley: Here’s Colton’s dad, Eddie.
Eddie Pitonyak: Because we’re, we were new to this process. Didn’t realize what, you know, how bad a Texas court system has just zeroed on up now to the case. They don’t care about the truth. I mean, I’d say it bluntly, but that’s what we’ve experienced. You get a postcard from a judge or not even a judge. And I don’t even think judges even read this stuff that’s sent to them. I think some clerk or something is reading it and you know, we’ve even had people, “well maybe get a judge…” that shouldn’t be the case.
Perri: So if you think about the picture of our litigation from 2009 – 2010 in the State Court where we were denied hearings, denied any opportunity to develop evidence, it’s pretty frustrating. So we get denied by the court of criminal appeals, which has jurisdiction on state writs.
Tinu: It is tough to win with a writ in Texas courts. The court of criminal appeals, Texas’ highest criminal court, denies about 95 percent of writs submitted in a typical year. Perri told us this is due to the Texas Justice System’s obsession with finality of conviction.
Perri: And then the next step is to go into federal court.
Tinu: The writ about the therapy session makes its way to federal court in the Western District of Texas, which also rules against Colton without a hearing.
Haley: When the writ fails, the Pitonyak team doesn’t give up, in fact they try for an even higher court. They file a C-O-A, or Certificate of Appealability. It may be a longshot but if granted, they could get a hearing in front of the federal 5th Circuit Court in New Orleans.
Perri: So I remember getting the, I was at my home office that day working from home. I was specifically, I remember exactly where I was. I was in my office and I opened my computer, got the notice from the fifth circuit, and I went and let out a shriek. I go “AHH!” and my wife goes, “what happened?” She comes in, it’s like, “what happened?” I was like, “They granted COA, they granted COA. And she was like, “Oh my God, I don’t know what that means.” So I was like, “the fifth circuit’s going to hear the Pitonyak case.” She was like,” oh my God.”
Tinu: Here’s Colton talking about that.
Colton: It just kinda blew my mind, you know, I’d been in the system long enough to, to be jaded at that point that I didn’t really get my expectations up. But as far as it was going as soon as the fifth circuit, you know, they didn’t have to take it, so they took it then they had a whole argument. I’m like, well yeah, they see something’s here. So you know, you think like, okay, I’ve got a confession of somebody else admitting to the crime that I’m in here for. So I mean, at the minimum you think, okay, I’ll get to go back to trial.
Tinu: Perri’s argument to three judges at the 5th circuit was recorded. In the audio recordings, you can hear how passionate he is. You can almost picture him bouncing on his tip toes and waving his index finger in the air as he accentuates the tail-end of each sentence.
Audio from 5th circuit hearing (Perri speaking): Electronic jail file at the the Travis County Sheriff’s Office, I mean, if we look at exhibit 6, it’s showing that there’s a host of information that you can acquire about Laura Hall in the hands of the Travis county Sheriff’s Office, it’s not in some locked drawer in some medical wing of the sheriff’s office….
Perri: Once they knew she was talking to people, they had a duty to look through that whole file. Whether it be the actual prosecutors or people on the investigating team. A failure to do that is a violation of Brady. Boom, done.
Haley: In October 2013 the Fifth Circuit issues its ruling. Denied. The court’s opinion gives several reasons for denying the writ.
Tinu: For one the judges say that because Carrie Hoffman was not involved in investigating or preparing the case against Colton, prosecutors weren’t required to get her therapy session record under the Brady rule.
Haley: The judges also write that an alternate perpetrator defense would have not been successful anyway because Colton himself said he “must have done it” on the stand.
Tinu: And because they said Laura Hall’s confession lacked corroboration and detail.
Haley: After yet another court failure, this time at the Fifth Circuit, Colton’s lawyers don’t lose steam. They petition the Supreme Court.
Tinu: Their Supreme Court petition is denied as well.
Haley: But this shouldn’t come as a shock. The Supreme Court only accepts about two percent of cases.
Tinu: The loss in the federal courts is a huge blow to the Pitonyaks. This is Bridget:
Bridget Pitonyak: It just, it’s like, it’s like having a wound and it just won’t heal, you know, it just, it starts to heal and you get hopeful that it’s going to go away. And then it’s like boom, there’s another, yeah, another wound to go with it. It just, it, it just, it’s the getting the hopes up and the working hard and knowing that you’ve got something and then being told you have something but we don’t care. It’s just, it’s hard.
Haley: This is Perri again:
Perri: We were feeling great about the case. I was like, we’re going to win this Brady argument and even if we lose that, we now have further evidence of actual innocence that was just given by Jason Mack.
Tinu: It’s July twenty-ten and Jason Mack is sitting in a Travis County holding cell. He’s waiting to be transported to the county jail after a court hearing for driving without a valid license.
Haley: Jason is no stranger to the system. The twenty-eight-year-old has been in courtrooms like this before and behind bars. The holding cell area isn’t large but the chairs are divided into two sections for men and women.
Tinu: Jason is sitting on the men’s side when a woman wearing a pantsuit is brought into the holding cell. It’s Laura Hall.
Haley: Jason knew Laura. He was a regular at the Orange Tree in the spring and summer of 2005. Jason testified at Laura’s trials that he had seen Colton abuse her. There are court documents that show the two together at the courthouse on the same day in July 2010.
Tinu: This is Jason:
Jason Mack: It was after court. Like everybody else already went back. We were the last two people there at court. Yeah, it was, it was odd. It was like, there was no TVs weren’t on, there was no officers there. Just that one lady. Um, there’s usually like a bunch of officers walking around back and forth and taking people to court and back and forth. But I guess we were like at the very end of the day.
Tinu: Laura tells him the news — her prison sentence has been doubled.
Mack: She was more mad than anything, it didn’t seem like she was upset. I guess it didn’t work out the way she planned or whatever her attorney told her didn’t go the way they thought it was gonna go. But that’s why I told her like, this isn’t like just like a regular crime. This is like something crazy. Like people don’t look at it the same way. When you had the five years, you should have just left it alone.
Tinu: Jason and Laura are both transported back to Del Valle jail in the back of a van.
Mack: And so they have me in the back of the van. They put her in first and there’s like a, it’s like a dog catcher’s van. Like it’s literally like a cage. Like they put her in the one little cage and there’s another guy in this other cage right here and I’m right here in the last part in the back and they transport us back to del Valley. And then she talked to me some more. There’s a bunch of little holes, like probably the size of maybe a quarter. There was a bunch of little holes.
Haley: This is what Jason says Laura told him through those little holes, according to the affidavit he signed three years later.
Tinu: Colton and Jennifer got back to the Orange Tree after their night on sixth street, but they’re not alone when they get there. Laura’s at Colton’s place. In the back of the prison van, Laura describes to Jason the argument she had with Jennnifer that night. Laura tells him they were arguing about Colton being unconscious.
Haley: Jennifer tells Laura that Laura’s ruining Colton’s life and she asks her to leave.
Tinu: Then, Laura grabs the gun.
Mack: She said I never would have killed that b**** if she would just shut her mouth, is what she said.
Tinu: After this conversation, Jason and Laura are taken to the respectives jails to serve their time and this story gets locked up with them until three years later.
Haley: In April of twenty-thirteen Eddie Pitonyak hires private investigator Eddie Frankum and he is asked to re-interview witnesses from the case.
Tinu: In August of that year, Frankum visits Jason in the West Texas prison where he’s serving time for an aggravated robbery unrelated to the Jennifer Cave case.
Haley: Here is private investigator Eddie Frankum:
Eddie Frankum: What I found most interesting about Jason Mack was that he wanted to give this information on behalf of a friend and he never asked for anything back. He never asked for money. He never asked for some commissary. He never asked for anything. He, he specifically said he wanted to do this because it’s the right thing to do.
Haley: And that’s not all.
Tinu: He’s willing to sign an affidavit. Here’s Colton:
Colton: And so then here comes Jason Mack and he says, here’s the details. She told me what happened and I’m looking, I’m going through all my stuff and I’m like, this fits, you know, the picture’s getting clearer and clearer.
Tinu: Colton’s lawyers prepare another writ based on what Jason told them.
Haley: Here’s Chris Perri:
Perri: Because she’s angry she has nothing to lose. Um, and she doesn’t care anymore. She’s about to go to prison for 10 years. She doesn’t care anymore about saving herself and she wants to boast to Mack that she’s still way smarter than him because she’s getting away with murder.
Haley: Colton’s lawyers decide to go after Laura Hall fully this time. In the writ, the defense team includes photographs of Laura from when she was detained by U.S. Marshals after the trip to Mexico.
Tinu: In one, there’s a semi circular wound on the back of her hand near her thumb. The defense team argues that it’s a relatively recent bite mark.
Haley: Another photo shows bruises that the lawyers contend to be about a week old.
Tinu: They also bring up a point made by Medical Examiner Elizabeth Peacock during Laura’s trial but not during Colton’s— that Jennifer’s autopsy revealed nearly all her wounds were post-mortem.
Haley: Except one…
Tinu: Jennifer had a wound on her hand that appeared to have occurred prior to or at the time of her death, the lawyers contend it was a defensive wound.
Haley: These points, when connected, lay the basis of what Colton’s lawyers believe is a reasonable argument that Laura is an alternative perpetrator in the murder of Jennifer Cave and that there was a struggle between Laura and Jennifer in Colton’s apartment.
Tinu: Private Investigator Frankum knows that Laura has a history of oversharing sensitive information with those around her. So, he pays a visit to the RV park that her parents own to try and collect affidavits from neighbors that Laura might’ve talked to about the case.
Haley: One neighbor he interviews says that in the summer of 2009, Laura told him (quote) “I capped that fucking whore.”
Tinu: Another neighbor says that same summer, he had a conversation with Laura about how he would shoot a home invader.
Haley: Laura told him (quote) “Well you’ll have to get rid of the body and you’ll have to clean up all that blood on the carpet.” In 2012 Laura’s father tells reporter Steven Kreytak of the Austin American-Statesman that the allegations about his daughter’s statements were “ridiculous” and made by people looking for publicity.
Tinu: People like the tenants at the RV park he owned, some of whom he was in legal battles with. While in prison Colton learns about all of this information, the conversations Laura has with his friends, her own neighbors, strangers even. He tries to put the pieces together.
Colton: I mean it’s, it’s the circumstance. It’s everything that surrounds it. You know? Cause even from the beginning, you know, there was a time when you could have convinced me you were playing with a gun and the gun went off, you know, and it was an accident. You could have convinced me that… a lot of points, you know, because there were some incidents like that playing with a gun at my house that it went off for something like that. But you could have never convinced me it was a murder. I mean there was, that was 100% this didn’t happen know, but you know, there was always like the question of like motive, why, you know, why would I have even done it? And there’s, there’s no answer to that. So that was always like, if something happened then it was an accident, you know? And there was never a question that, and I don’t think anybody really ever questioned that, you know, cause nobody ever, there was nothing there. But then, you know, you have Laura, she’s got motive, she’s got, after she gets arrested, she’s threatening the DA talking horrible about Jennifer, about her family, you know, just everybody involved and just keeps on and keeps on and keeps on, you know, so it’s, it’s just everything, that, the mutilation and stuff was just like, it was like anger, you know, it was, there was an emotional, like there was something very emotional in that, that, you know, someone who is emotionally invested and it just, I mean everything, like I said, it’s not one, you know, one big piece.
Tinu: The defense team goes after Laura’s alibi.
Perri: Weak. Um, I’d characterize it as extremely weak. I’d characterize it as convenient. Um, I’d characterize it as unbelievable.
Tinu: Ryan Martindill, who testifies in Colton’s trial that Laura was at his place sleeping on his couch when Jennifer was murdered, initially wasn’t so sure about that when he talked to police.
Haley: He told an Austin police detective that he didn’t remember Laura staying at his apartment on August sixteenth.
Tinu: But said she did stay on his couch sometime that week.
Haley: He just couldn’t remember what day it was.
Perri: Originally in his statement to the police, tells the police that he did not recall Laura Hall spending, um, the night of August 16th and August 17th, 2005 at Ryan Martindill and Star Salzman’s apartment.
Haley: Then there’s Martindill’s roommate, Star Salzman.
Tinu: He testified that Colton and Laura swung by his apartment on the way to Mexico to grab the bottle of rum Laura had left there the night before.
Haley: But before the trial, Salzman told police that he actually didn’t remember seeing Laura on their couch the night of the murder.
Tinu: He said that she had stayed overnight before but he couldn’t exactly remember the last time she had stayed over.
Perri: Star Salzman also did not recall that, but they recalled something very important a couple of days. They recalled that a couple of days later or about a day or two after the murder, um, Hall and Colton stopped by the Salzman/Martindill residence. So I think a good detective question that our detectives didn’t ask is why do Salzman and Martindill or why does Salzman clearly remember Hall and Pitonyak stopping by the day after, but he has no recollection of Laura Hall being there the day before.
Haley: Jason Mack signs another affidavit in the fall of 2013 saying that he had once witnessed a conversation between Laura and Ryan Martindill.
Tinu: It seemed to him that Martindill didn’t like Colton. Because he had feelings for Laura, himself. Colton’s lawyers contend that Martindill covered for Laura. The prosecutors in Colton’s trial expressed some uncertainty themselves about Laura’s involvement in the crime.
Haley: They wrote an article called “The Murderer Next Door,” in a magazine for district attorneys. In it they write that they knew there was a mixture of Colton’s and Laura’s DNA on the murder weapon and that Laura’s alibi witnesses were initially uncertain of the exact dates. They called Laura a wildcard.
Tinu: Colton’s defense lawyer Sam Bassett didn’t go after Laura when he represented Colton at his original trial. But he signed an affidavit in June 2014 saying that, if his defense team had had the evidence presented in this writ, he would have changed their strategy to cast Laura Hall as an alternative perpetrator.
Haley: The defense team sent private investigator Eddie Frankum to find the twelve jurors and two alternate jurors who served on Colton’s trial and present the new evidence to them.
Tinu: Frankum found eight of the fourteen.
Haley: Five of these jurors stated that in light of the new evidence, they have a reasonable doubt about Pitonyak’s guilt and would have voted “not guilty.” A sixth juror said she believes that the new evidence creates a reasonable doubt about Colton’s guilt but didn’t want to sign an affidavit.
Tinu: A seventh juror refused to be interviewed and an eighth refused to even look at the Mack affidavit.
Haley: Here’s Perri talking about that.
Perri: So, um, well, um, that has no impact in law because, uh, any juror’s statements are inadmissible. But, um, I do think that as a human being, which judges are, they should maybe look to put that in the back of their mind when they’re doing their prejudice or harm analysis. Um, because our number one goal has to be avoiding, um, putting innocent people in prison. Number one goal cannot be the finality of these convictions.
Tinu: The Pitonyak team went back to federal court in twenty-fifteen to file this writ. It was rejected without a hearing with a one-paragraph ruling that said (quote) “We do not recognize a claim of actual innocence.” The Pitonyak team petitioned to the U.S. Supreme court but as of now the high court hasn’t taken up the case. Here’s Colton:
Colton: I mean short of getting basically a video of me being somewhere else at the time. I mean, you know, what do they want?
Perri: Once a jury says it’s guilty, it’s fact and then they worship it because it allows you to sleep at night if you don’t think about the fact that the people that are actually behind these verdicts are fallible. So what it says about Texas justice system is that justice here is inaccurate.
Tinu: During our process reporting on this case, we contacted UT law school professor Chris Roberts to give us context on some of the complicated legal maneuverings we weren’t familiar with.
Haley: He’s also the director of the criminal defense clinic at UT. He was eager to help us. Roberts says a jury verdict isn’t the only reason why appeals and writs lose.
Chris Roberts: Again, very general, Judges don’t revel in overruling what another judge did. You know, there’s a lot of things in the system itself in the way that the appellate court rules work that say like, will you give the benefit of the doubt? So at the first level, they’re going to give the benefit of the doubt to the trial judge in any number of instances because they are the one sitting there listening to the evidence.
Haley: One spring day during our last semester at UT, Tinu and I were notified that we had a phone message waiting for us with the journalism school’s receptionist.
Tinu: It was from Eddie Pitonyak.
Haley: We had not yet tried to reach out to Colton’s parents yet.
Tinu: Eddie found us.
Haley: Colton told him that we requested an interview.
Tinu: And Eddie wanted to know who we were and why we wanted to talk to his son.
Colton: I mean, you know, he’s a great dad and I think, you know, that’s his purpose in life is to get me outta here, you know, be able to spend some time with me, you know? And like I said, if it wasn’t for them, you know, I don’t know what I would’ve done.
Tinu: Over the next several months we came to know Eddie as an investigator himself. He’s the one funding all of Colton’s legal maneuverings, paying for a stable of lawyers and investigators, and he has a mountain of files and almost as many theories about what happened on that horrible night in 2005.
Haley: Joe Turner who had worked on Colton’s appeals told Eddie and Bridget that winning any appeal would be an uphill battle.
Joe Turner: You know, I’ve told Eddie many times, stop spending the money, you know, years ago I said, you’re not going to get justice in these appellate courts. And I hate to say that as a lawyer, you know, that, that, that I was telling him that, but I said, look what’s going on here. You’re spending a fortune and then we’re not going to get this justice, but due to his tenacity and you know, as a father, you can’t go up, give up on your son. And he has never given up on Colton.
Haley: One of Eddie’s biggest complaints about the process is the strategy that Colton’s original lawyers Sam Bassett and Roy Minton took.
Tinu: For one, he believes those lawyers should have listened to Henriette Langenbach.
Haley: The prisoner who says Laura talked to her right after being arrested.
Tinu: Eddie says he and Bridget weren’t included in any of the processes with Colton’s defense team leading up to his trial.
Eddie: We thought we had Colton in good attorneys hands. So we were just trusting them and, and, and I used to get in the way of stuff too. I’m wanting to jump in the middle of something so I stayed out of the way and didn’t, didn’t put my 2 cents forward or anything. Which was a big mistake.
Haley: Joe Turner respects Roy Minton. But the strategy he took in Colton’s case surprised him.
Turner: They gave up too much. You know, uh, I know Minton, uh, has kinda turned a lot of his practice to the civil area the last decade or two. Um, oh, he, he wasn’t trying that many murder cases in the last 20 years. I’m not taking anything away from him. My opinion, he’s the best that ever tried them. But I don’t think that, I think he gave up too much in this case. I would not have tried to like he did and I was surprised that he tried it like that.
Tinu: Colton regrets going with the strategy that Sam Bassett and Roy Minton used in his original trial.
Colton: What do I do? Do I roll the dice with my life? Okay, so you want me to go in here and say this as an accident? Well, do you remember accidentally killing her? No. Well, no, you can’t testify that. I’m like, what are we doing? Well, just go in there and just be honest. Just say you don’t remember it. I’m like, you want me to get on the stand and say, okay, I think I killed somebody but I don’t remember. I’m like, you know, it’s bad enough you want me to go in there and own a crime I didn’t commit and be like, I did this I’m sorry. You know, it’s bad enough to do that. But I’m like, okay, maybe this is some lawyer’s strategy to make sure I don’t spend the rest of my life in prison. But now you want me to just go in there and say, well, I probably did it. You know? I mean, that’s no legal strategy… on top of that, I mean, what are we doing?
Haley: Sam Bassett says his team’s strategy of saying Colton accidentally killed Jennifer was the best they had at the time.
Sam Bassett: First Laura Hall wasn’t talking to us. We didn’t have any information from her. She was represented by counsel, so we couldn’t interview her, talk to her. The other thing, for a long time, we didn’t make up our mind about a theory. We were looking at every, every alternative. So, the alternative perpetrator theory was, was discussed up until close to trial. It was not, we had not eliminated it. But once we interviewed the person she was at the apartment with, I think his name was Martindill, we interviewed him in person and we looked at the text message, um, traffic. We didn’t feel like that was a viable theory.
Tinu: But Joe Turner believes that there was enough evidence to pursue an alternative perpetrator theory earlier in the case.
Turner: She had the motive and look the, the Martindill, uh, testimony where he says that she, the Alibi that she had was incomplete. I could destroy that alibi. She didn’t have a tight alibi.
Haley: On his lawyer’s recommendation, Colton sat in jail in Austin for 17 months while awaiting his trial. Here’s Eddie, Colton’s dad, talking about that.
Eddie: We didn’t bail him out. You know, that didn’t look too good either, you know, at the time. You know, I never thought about it until this podcast came up. We were doing again, just what we were told to do.
Haley: Sam Bassett doesn’t remember recommending that to Colton or his family. But he does say there’s logic behind that decision.
Bassett: Hypothetically, I can say that sometimes when clients are having issues with alcohol and drugs, uh, it’s not a good idea for them to be out of jail immediately because it could create more problems than, than if they’re, if they’re not in custody. I mean if they’re in custody. Uh, I don’t remember if that was a particular factor in this case, but I can imagine that it could have been.
Tinu: We were unable to talk to the now-retired Roy Minton for this podcast.
Haley: Since the guilty verdict, Eddie keeps digging. He keeps sending investigators out to look for new leads. Keeps asking his lawyers to file more appeals. It’s January 8th, 2015. Colton receives a JPay, it’s like an email you pay for in prison. It’s from someone named Michael Christopher.
Tinu: Colton doesn’t remember this name, but Christopher says he’s an old friend who just got out of prison himself. And Christopher says he’d like to talk to him.
Haley: Colton reaches out to his dad, who then contacts private investigator Eddie Frankum to look into Christopher. Colton also wants a photo of Christopher to jar his memory.
Tinu: Frankum provides a short bio and a few photos of Christopher. Colton recognizes him as Black Mike, the nickname Christopher went by back in 2005 when they knew each other.
Haley: Frankum goes to the Dallas-Fort Worth area to meet with Christopher.
Frankum: Next thing you know, we’re sitting on, on his couch and he starts telling me the story about the night Jennifer Cave was, was killed. And I had never heard of Michael Christopher before.
Tinu: In February of 2017, Christopher signs an affidavit. This is his what he says in it:
Haley: He hung out regularly at Colton’s place back in two-thousand five and he owed Colton about five-thousand dollars during the time of Jennifer’s murder. Colton calls him saying he needs the money, so Christopher decides to go to the Orange Tree at three a.m. to pay him, which is around the same time that prosecutors believe Jennifer was killed. He saw and spoke to Colton Pitonyak and Jennifer Cave. Another guy who went by Bird was also there. Colton was acting normally for him, which means he was drunk and high. Christopher leaves the apartment at five a.m. and (quote) “no one was dead and Colton, Jennifer and Bird were still there.” He says he remembers the dates so well because he himself was arrested on August eighteenth for an unrelated crime.
Frankum: I had no idea this was coming. I had absolutely no idea. So it was like really big news because we just shot a big old bullet in the state’s timeline, which is kind of a big deal. Um, was this new evidence? I thought that it might be because no one knew who Michael Christopher was. I mean, the JPay said his real name. No one knew his real name.
Haley: Frankum then tracks down Bird — the only name Christopher remembers.
Frankum: That’s all he said was Bird. And of course my next question, who was Bird? And his response was, I don’t know. I don’t know his real name. I first met with Michael Christopher in twenty fifteen. And then it wasn’t till twenty seventeen that I was able to finally meet with, with Bird.
Haley: Frankum finds out Bird’s name is actually Bradley Brown. Brown signs an affidavit a month after Christopher signs his. This is HIS story.
Tinu: Brown and three other friends show up at unit eighty-eight around eight fifteen p.m. before Colton and Jennifer go down to Sixth Street. Brown sold drugs for Colton and that night he was waiting on a new supply to come in. Colton and Jennifer leave to sixth street and the four guys stay behind at The Orange Tree. Brown says other drug dealers and some buyers stop by the apartment while they’re gone. Eventually, Colton and Jennifer get back to the apartment. And Christopher comes by at three a.m. to pay Colton money he owes him. Everyone is partying and using drugs, no one is fighting. And around five a.m. Christopher leaves. At five fifteen, five or six people are passed out in Colton’s apartment, including Jennifer who is still alive. Colton says there are too many people in his apartment and he needs to be alone, so he leaves. Brown sees a chance to rob Colton and take the money Christopher had given him as well as some of Colton’s drugs. He hurries out of the apartment, leaving behind his backpack with his Texas ID in it. Colton calls him later that day saying he wants his money back but Bird never sees him again.
Haley: Brown remembers his backpack and returns to the Orange Tree to retrieve it. But he finds himself walking up to a crime scene. He asks a police officer at the scene if it was true that a murder had happened. The officer wants to question him, but Brown doesn’t want to get involved in a murder investigation. Brown says he has never talked to anyone else involved in the case except for Eddie Frankum, the private investigator. If Christopher and Brown are telling the truth, the one to three a.m. time of death established at Colton’s trial would be wrong. Frankum says Christopher and Brown could be more than just witnesses.
Frankum: It was not just a punch in the timeline. It’s now we have alternative suspects who had motive and they had opportunity to commit this crime, the murder of Jennifer Cave.
Tinu: Both Christopher and Brown say they are willing to testify on Colton’s behalf. Here’s Colton talking about that:
Colton: The Bradley Brown, the Mike stuff coming out was huge. Cause I was like, there was that huge gap right there in the middle and it was hard to account for that. They could always say, well this happened here, well what happened between these hours?
Tinu: The Pitonyaks had hired two more well-respected Austin lawyers, John Jasuta and David Shulman. Jasuta uses Christopher and Brown’s stories to file a writ saying the state’s timeline of the night Jennifer was killed is off.
John Jasuta: Mike Christopher established the fact that Colton could not have committed the crime as alleged by the state. Not that he couldn’t have committed the crime, but he certainly did not do so in the time constraints set up by the state in their, in their case.
Tinu: Remember Nora Sullivan’s testimony about Colton coming over to her place at three a.m?
Haley: She said he was telling her wild stories about a shootout.
Tinu: Well it turns out after she read Christopher and Brown’s affidavits, she thinks she might have been wrong. She said she was on meth that night and there’s a chance that Colton could have come by as late as 5:15 a.m.
Haley: She signs an affidavit saying all this in August, twenty seventeen.
Jasuta: Now Nora Sullivan is a very interesting person. She came here for the hearing and she was going to testify that, uh, uh, she really is unsure of anything she said that, uh, at the trial or anything to the police at all because at the time she had been using certain kinds of drugs and uh, and really had no way of knowing what she was saying was true or imagination or anything and she had no memory of it at all.
Haley: Colton’s lawyers say Christopher and Brown had good reasons not to come forward with their stories in 2007 for Colton’s original trial.
Jasuta: Christopher’s in jail, he’s in prison for nine years and he’s not going anywhere and he knows nothing about the situation. Why doesn’t Brown come forward but, but Brown’s a dope dealer and he needs to get involved in murder like, uh, you know, you do. The other thing too is if, if the timeline that we presented was true that he’s coming in and saying, no, no, she was alive when, uh, when Colton left and then by the way, I took all the money and the drugs and left. Well that impliedly points the finger at him. Maybe he’s the one that shot her and there’s more than that. The other thing is, is that every, everyone should remember that we did not instigate this. Uh, this was instigated by Mike Christopher, and why would he do it? Why would he bring this thing forward? He’s on parole. He’s got everything to lose. Why would he say I was dealing dope with Colton Pitonyak? I mean, it makes no sense unless he’s telling us the truth.
Haley: The Pitonyak team asks for a hearing to see if a judge agrees that there’s enough here to go forward. They get one. But five days before the August sixth twenty eighteen hearing. Michael “Black Mike” Christopher and Bradley “Bird” Brown are indicted on perjury charges for their statements in the affidavits.
Tinu: The state argues that Brown was in prison when Jennifer was killed and couldn’t have been at the Orange Tree. So, Christopher couldn’t have seen him there.
Haley: The state provides copies of Brown’s court records that indicate he was in jail from mid June to mid October 2005. The murder happened in the early morning hours of August seventeenth.
Tinu: Both men are given court-appointed lawyers.
Jasuta: But more than that, then they go through the charade of appointing counsel for each of them and say, well, you have 10 minutes to discuss this with your clients. And the question is, should you testify, there’s not a lawyer in the city of Austin that would tell them to testify with 10 minutes worth of investigation.
Tinu: Here’s Colton talking about that:
Colton: The attorneys go to them basically, you know, hey, this is bullshit but if you don’t get on the stand, they can’t charge you. So I go into the hearing, I don’t have my new witnesses. Now, Nora is going to get on the stand and basically say that everything she just fed to was basically just bullshit, you know, which we knew, you know. Her first statement: I didn’t even see him that night. Second statement: I think I might have seen him. Third? You know, it gets clearer and clearer and now all of a sudden it’s at this time, now all of a sudden, well I think there was a blood stain on his arm, I mean that could’ve been a mosquito bite, you know? It just gets clearer and clearer but she was finally gonna get up there and basically be like, yeah this is bullshit, I was on drugs. And then when she gave her statement, you know, she’s basically coached, but I can’t put her on the stand because now they’re not there. So, I go into court with nothing. So they’re like, well, we’re going to section four, which is abuse of writ and you know, back to prison for you.
Tinu: In the rules governing writs, section four defines what can be considered new evidence.
Haley: And a writ can only move forward if a judge says the evidence is truly new.
Tinu: State district judge Clifford Brown rules that the affidavits are NOT new evidence because Colton’s team should have known to reach out to Christopher and Brown before his trial in 2007.
Haley: Judge Brown denies the writ 10 days after the hearing. Although at this point Christopher and Brown were only indicted for perjury, not convicted, the judge agrees with the state that they perjured themselves.
Tinu: He also says that Nora Sullivan’s testimony would not be credible since she cited Christopher and Brown’s affidavits as part of the reason she had become less sure about the timeline.
Haley: Eddie Pitonyak often writes reflections after major court maneuverings. His notes from this one show that Christopher decided not to testify.
Tinu: Brown and Nora Sullivan were still ready to talk. But the judge didn’t allow witnesses.
Haley: Eddie Pitonyak rails against the local media for not attending the hearing and hammers the DAs office and the judge. He says were more interested in finality of the verdict. Ands for the perjury charges, he says the records showing Brown being in jail at the time of Jennifer’s murder are questionable and he feels the issue should have been resolved at the hearing.
Tinu: Even though the state included records showing that Brown was in jail, Eddie Pitonyak points out that prosecutors also included records showing that Brown’s community service had been revoked at the time when he was supposedly already sitting in jail.
Haley: Despite this, Christopher and Brown both eventually pled guilty to perjury. They each were sentenced to one year in prison in 2019.
Tinu: Colton’s lawyer John Jasuta told us that Brown SWORE to private investigator Frankum that Christopher was out on bond at the time of Jennifer’s murder and that he was there at the Orange Tree that night. But Colton’s team wasn’t able to get the daily logs from the Travis County Jail to verify that.
Haley: We asked Colton’s lawyers if they had looked into Brown’s record to see if he ever got out on bond around the time of Jennifer’s death. Jasuta said that they didn’t look into it because after the perjury charge was sprung on them, it was too late to matter whether or not he was actually out. So we looked into it ourselves. We went down to pretrial services.
Tinu: If we wanted to find out if he got out at any point from the time he was arrested to December, is there any way to tell if he was released?
Clerk: Um.. We don’t have anything after…
Haley: After several back and forths between the employees of the District Clerk’s office and pretrial services — two beige rooms separated by an equally beige hallway. We learned that Brown WASN’T approved for a personal bond in 2005. But when we asked if he could have been out in any other capacity the answer was less clear. The employee said Brown could have been out on bond through a bail bond service or through his attorney but that information wasn’t in their records. Despite their guilty pleas to the perjury charges, no one could tell us for certain whether Brown was out at the time of the murder or not.
Tinu: Private Investigator Frankum thinks the prosecution charged Christopher and Brown to keep them silent.
Frankum: I think it’s terrible. I think it’s absolutely terrible what the state did to those two guys. I mean, there were witnesses on a case and in order to shut them up, they arrested them?
Tinu: It’s not over for the Pitonyak team. At least they hope not. As we were producing this podcast in April of twenty twenty the appeals lawyers took another shot at getting heard by the Texas court system. They argued that the state’s highest court should take another look at the earlier writs based on multiple witnesses saying Laura confessed to killing Jennifer.
Haley: And they have a new witness in this filing, an inmate by the name of Rhonda Glover. Glover says Laura confessed to killing Jennifer before Colton’s trial. Glover affidavit says Laura said she (quote) “capped that bitch” and repeatedly said Colton was innocent. Colton’s lawyers say this newly found witness is the fifth time they have been told that Laura confessed to killing Jennifer.
Tinu: Colton’s lawyer told us that the state courts don’t have to take up or even respond to their recommendation to look into the writs again, and they are not feeling optimistic that the justices will either. The Pitonyaks are clearly frustrated with the system.
Haley: But Jennifer’s parents, Sharon and Jim, have their own frustrations with it.
Tinu: Beyond the devastation of losing Jennifer they too have had a tough time navigating through the justice system.
Jim Sedwick: It was a rude awakening. Uh, that victim’s family is this, as the Texas saying would go, you have a dog in the fight. You don’t want to be any notification of anything that happens. You are at the mercy of the victim services professionals, which were absolutely stunningly amazing.
Sharon Sedwick: It is the state of Texas versus Colton Pitonyak. There’s only so much as her parents that we can do because it is the state of Texas’ case. It is not my case and that is extremely (A) hard to say (B) hard to hear and 3) hard to endure. That is, Jim said earlier, that we don’t have a dog in this fight. The first time that I realized that this wasn’t our case. Um, yeah. I still have a hard time catching my breath about it. Um, they don’t call it the criminal justice system because it has a snappy ring to it and victims can really, really, really get lost.
Tinu: Allison Wetzel who prosecuted Laura during her resentencing feels the Pitonyaks have had more than enough chances.
Allison Wetzel: Colton’s family seemed to have an unlimited amount of resources to pay attorneys and his attorneys seem to have an unlimited number of people who were willing to sign an affidavit saying that Laura had confessed to them doing the murder. So they have, they have raised that over and over and over again.
Jim Sedwick: Most people don’t realize… you think you get through the trial and somebody’s convicted in their sentenced and okay I’m done with this… and you’re just getting started. I mean literally that was in January 31st of ‘07 and we were still doing appeals in late ‘18 and it goes on for the court how much money you got. If you’re the defendant, how much money do you have? Cause if you got money you can keep throwing money at the appellate process.
Haley: But Jennifer’s family STILL goes to every appeal and every hearing.
Sharon: Why do we go? Because as much as I thought that testimony was the last thing I can do as Jennifer’s mom, itt was just the beginning of being Jennifer’s mom in a different role and there’s not going to be a setting … there’s not gonna be anything. We have not missed anything that is about our daughter that we’re going to miss. I wouldn’t miss a soccer game, I wouldn’t miss anything else. I’m certainly, certainly not gonna miss this and I am always going to make sure that this is done right.