05.A.Descent.Into.Hell.2008 (38 page)

Twenty-eight

As she got ready to leave for Austin for the trial, Sharon felt anxious and frightened. She’d have to testify, and she’d have to sit in a courtroom hearing horrible, graphic testimony about how her beautiful young daughter died, while the man accused of murdering her sat just steps away. Uncertain she’d get through it, Sharon confided in Father David, her pastor. He understood. But then he said something about her participation in the trial that gave her courage: “This is the last gift you can give Jennifer.”

When they arrived from Little Rock, Eddie and Bridget Pitonyak sat down with Sam Bassett and Roy Minton. In the months leading up to the trial, the defense team had considered and abandoned tactics, including suggesting the fatal shot could have been fired by Laura Hall. Despite her DNA on the gun, they decided, the evidence just wasn’t there, and the testimony of Martindill, that Hall was at his house the night Jennifer died, made that seem unwise. Both defense attorneys feared that if they angered or alienated the jurors, the jury could come down hard on Pitonyak.

Instead, Minton and Bassett attempted to prepare Colton’s parents for the likeliest outcome: Their son would go to prison. Although they’d argue Pitonyak’s innocence, the victory Minton and Bassett hoped for was the same outcome they had engineered four years earlier for a young man named Brandon Threet.

The case was another sensational one. Threet, a nineteen-year-old San Antonio college student, was accused of murdering Terence McArdle, a UT student. At a party, Threet and McArdle wrestled, at first playfully. At some point, however, Threet lost his temper, hitting McArdle in the face and kicking him. McArdle suffered brain damage, then died a few days later. Williamson County prosecutors charged Threet with murder. During the trial, Minton and Bassett convinced the judge to include lesser offenses in the charge, giving the jury the option of finding Threet guilty of not murder but manslaughter. The major difference: A murder conviction had a maximum sentence of life, but manslaughter only twenty years.

During the closing at the Threet trial, Roy Minton argued, “There is no excuse, nor have we suggested an excuse. This was one moment that has made an impact on his life. Do you believe in salvaging youth when they make a mistake?”

Minton and Bassett prevailed, convincing jurors to find Threet guilty on the lesser charge and sentencing him to twenty years. Could they do as well for Colton Pitonyak?

Finally, on the morning of Monday, January 22, 2007, Judge Flowers called the 147th District Court into order, for the purpose of seating the jury that would hear the case against Colton Pitonyak. A panel made up of eighty-eight citizens of Travis County, Texas, filed through the door. In some cases, voir dire, the questioning of potential jurors, is relatively uneventful. That would not prove true in this trial. Instead, it would be an interesting day, with the word “intent” playing a major role. The reason: the prosecutors’ lack of a motive.

To gauge reactions, Bishop and McFarland explained the law and then peppered the men and women with questions directed at giving insight into whether each individual would be able to look beyond the question of why Pitonyak killed Jennifer. The prosecutors did not have to prove motive, Bishop said, why on that particular night Colton Pitonyak decided to kill Jennifer Cave. The law required only that prosecutors show “specific intent”: that Colton Pitonyak meant to kill Jennifer Cave. That intention didn’t have to exist for any explicit length of time, not for days, hours, or even minutes. It could be formed in the split second it took for Pitonyak to point a loaded gun with his finger on the trigger.

When they took over the floor, Bassett and Minton discussed another issue: Pitonyak’s high consumption of drugs. Their approach begged the question: Foggy from the drugs, was Pitonyak capable of making an intentional decision to kill Jennifer Cave? And if he wasn’t, was it murder?

“If you’re leading up to making the case that the drugs did it, I’d have a very difficult time finding reasonable doubt,” one potential juror said.

“I am not saying that at all,” Minton countered.

The bombshells for the prosecution started even before the trial, when while questioning jurors, Roy Minton gave a preview to the week ahead: Jennifer and Colton, Minton said, were best friends, and he had no reason to kill her. Yet Pitonyak would not dispute that he was the one who fired the fatal gunshot. He took responsibility for firing the gun that killed Jennifer; but it wasn’t murder, rather an unfortunate accident.

One other thing Bassett said caught Bishop by surprise: Colton Pitonyak planned to testify.

For months, Minton and Bassett had suggested that with so much pretrial publicity, seating an impartial jury in Austin could be difficult, but that didn’t prove the case. By the time they left the courtroom that day, prosecutors and defense attorneys had agreed on six women and eight men, including two alternates, who would be charged with deciding Pitonyak’s fate.

Still, as he picked up his files to put them in his briefcase, Bishop wondered: Could he rely on what the defense attorneys seemed to be indicating, or was Roy Minton introducing one approach to mislead him, only to argue another during the trial?

Usually the opening day of a sensational murder trial is marked by a static excitement, but the Pitonyak case broke that mold. Although the courtroom filled with reporters, lawyers, and spectators eager to hear the evidence and judge for themselves, the tenor was subdued, unusually quiet. Even when the judge wasn’t on the bench, talking was muffled. The horror of what had been done to Jennifer’s body permeated the proceedings. One spectator came strictly to get a look at Pitonyak. “I wanted to see for myself what kind of an animal could do that,” she said. “When I looked at him, he looked normal. It was terrifying.”

Sitting in the defendant’s chair that morning, Pitonyak resembled the young businessman he’d once planned to be. He wore a gray suit and dark tie, his hair was cut short, and his face had broken out, perhaps from stress. The blemishes only made him look younger than his twenty-four years. As he waited for opening statements, he rarely glanced at his parents, who clustered together, leaning on each other, on a bench two rows back. Instead, the young defendant stared straight ahead, has face placid and unemotional.

Meanwhile, Bridget looked tired and sad. At times, Eddie appeared angry, as if he reined in deep frustration. Dustin sat beside them. Anyone seeing the two young men would have quickly realized they were brothers; they looked so much alike. By then, Dustin, who’d been the lesser high school student, had earned a master’s degree and gone to work with his father, while Colton, the family star, faced up to life in prison.

From her perch beside the judge, Rita Grasshoff, the court reporter, turned on her computer and set up her supplies. Over the years Grasshoff, a woman with a kind smile and a warm manner, had seen a parade of defendants, some found guilty, some innocent; some that never made a headline, and others, like Pitonyak, whose crimes made them infamous. One of the first trials she worked was in Florida, that of America’s most famous serial killer, Ted Bundy. Decades later, Grasshoff would remember Bundy as “cavalier,” a “showoff.” At times, he huddled so close to her during bench conferences that she felt the warmth of his breath, sending chills through her.

Big cases attract crowds, and Grasshoff wasn’t surprised that the courtroom for the Pitonyak trial was standing room only. As jurors took their seats, Judge Flowers called the case to order. He looked pensive behind the bench, listening to last-minute motions.

TV and print reporters filled the courtroom and the hallway outside. Both families kept their distance from the press, but the Pitonyaks nearly flinched when a reporter walked past. Outside the courtroom, they walked briskly, rarely looking up, often turning away to hide their faces from the camera. As they had in Little Rock, Colton’s family fought to wall themselves off from prying eyes.

At the prosecutors’ table, Bishop and McFarland worried. Pedro Fernandez was an important witness, and arrangements still weren’t in place to bring him to the United States. McFarland had been negotiating for much of the month, but federal authorities wouldn’t bend. If he came, they wanted Fernandez kept in jail during his stay in the United States. The Mexican hotel clerk balked at the idea and refused to come. Fernandez wasn’t a U.S. citizen, and Bishop had no legal authority to force him. “I’m a Travis County prosecutor,” says Bishop. “I can’t make either Fernandez or the U.S. government do anything.”

Behind them sat Jim, Sharon, Vanessa, and Scott, waiting for the first day of a trial they hoped would finally bring justice if not closure. Jim’s cousin, Jack Bissett, M.D., with his dark hair streaked gray, and his wife, Tracey, sat beside them. An Austin infectious diseases expert, Bissett had grown up with Jim, and he’d been there to support him throughout the ordeal since Jennifer’s death. At the trial, he’d be able to answer Sharon’s and Jim’s questions about the medical testimony.

Once Judge Flowers called the court to order, Stephanie McFarland read the charge against Colton Pitonyak to the jurors: murder. Then Bill Bishop began his opening, setting the stage for the case he and McFarland would put before the jury.

“Evidence will show…” Bishop began. Hands behind him, pacing in a short line in front of the jury, the solidly built prosecutor outlined the evidence. Bishop planned to take the jurors on a journey, from Jennifer’s first exciting day on her new job, through her final evening on Sixth Street with Colton, to Bill Thompson’s call to Sharon to tell her that her daughter hadn’t shown up for work, through Jim Sedwick’s gruesome discovery. “Jennifer Cave died as the result of a gunshot,” Bishop said. “After her death, Colton Pitonyak dismembered her, cutting off her head and her hands…based on the evidence you will hear, I believe you will find the defendant guilty.”

Next up was Sam Bassett, who got quickly to the point by emphasizing that for a murder conviction, Pitonyak had to have acted knowingly and intentionally. Pitonyak stared blankly at the defense table as Bassett said, “This isn’t going to be a ‘who-done-it.’ Colton will tell you he caused the death of his friend, Jennifer Cave.” But then the caveat: “He’ll also tell you there’s no reason in the world he would have done that intentionally or knowingly.”

From the defense’s opening statement, the second defendant in the case, Laura Hall, entered the courtroom, although not physically, but rather by name and implication. “You will hear from Colton. You will not hear from Laura Hall…[but] Laura Hall’s DNA
was on the gun
,” Bassett said, emphatically slapping his hands. Colton could try to implicate others, “but he’s not going to do that.”

In a forceful voice, Bassett talked of Colton’s growing-up years, the bright scholarship student, and the Catholic school kid from a good family. “How did we get from there to here?” he asked. The blame lay with Colton’s addiction to alcohol and drugs.

The cause of death, Bassett pointed out, was a single gunshot wound. The “horrible situation became worse” when Laura Hall arrived on the scene. Colton accidentally killed Jennifer, Bassett insisted. As for the atrocity of the mutilation, the defense laid all the blame on Hall. “You’ll hear Colton say, ‘There is no way I would have intentionally and knowingly caused the death of my good friend Jennifer Cave,’” Bassett concluded. “That’s why I’ll ask you to find the defendant not guilty.”

Although Bassett spoke of guilt and innocence, seated behind the prosecutors’ table, Bishop and McFarland realized that the defense’s plan was no longer in question: Bassett was admitting Colton’s guilt and instead was laying the groundwork for a lesser charge and a shorter sentence. Yes, Colton Pitonyak was guilty, Bassett was saying, but not of murder. At the most, his client had committed the lesser crime of manslaughter.

In the audience, Sharon leaned against Jim, while Vanessa held on to her mother’s arm. Both women fought back tears. Something Bassett said stung Sharon: Colton, drugged and drunk the night of the killing, didn’t remember shooting Jennifer. “I hoped he’d remember every detail,” she says. “I hoped he’d never forget, that not a day would go by when he didn’t relive what he did to Jennifer. That’s my wish for Colton Pitonyak.”

“Did [Jennifer] ever call you?” Bishop asked his first witness, Thompson, the attorney who’d hired her the day before her death.

“No, sir,” Thompson said. He’d just detailed August 16, Jennifer’s first and only day on her new job. She’d done so well that Thompson had offered her a better position. Then, on the seventeenth, Jennifer never showed up and never contacted the office.

While Bishop laid out the timeline for Jennifer’s disappearance, Minton and Bassett had points of their own they hoped to make. “Let me ask you a few questions about your conversation with Jennifer,” Minton said. “Did you have any information on her at all?”

Thompson explained that his administrative assistant weeded through the job applicants. That responsibility wasn’t his.

“[Jennifer] was a bright, attractive girl?” Minton asked.

“Both those things, yes,” Thompson agreed.

“Since then have you had occasion to look into her background, how many jobs she had?” Minton asked. Although Jennifer wasn’t on trial, her history of job hopping and drugs was something Minton wanted before the jury. This young woman was troubled, he was suggesting.

“No, sir,” Thompson said.

From that first witness, Roy Minton tried to humanize Colton in front of the jury. He put his hands on his client’s shoulders, calling him a “boy,” and a “young man.” Old enough to be Pitonyak’s grandfather, the lead defense attorney acted the part, scolding his client at times, as if Pitonyak were an errant child. This was not a hardened criminal, a cold-blooded murderer, Minton’s words and body language implied. Colton was simply an inexperienced young man who’d briefly lost his way.

Looking somber in a black dress, Denise Winterbottom then took the stand. Stephanie McFarland rose to ask the questions, expanding the timeline of that fateful day. When Denise awoke that morning around six, Jennifer was missing. “The room was empty,” Denise said. “I felt something was wrong.”