Sunday, December 18, 2016


Two and 1/2 years ago, I represented, along with co-counsel Robert McCabe, Mr. Rex Nisbett for the allegation of the murder of his wife, Vicki Lynn Nisbett.  The trial took place in the 26th District Court in Williamson County, Texas, the same courtroom where Michael Morton was officially exonerated for killing his wife two and 1/2 years earlier after spending 25 years in prison. The murder of Ms. Nisbett was alleged to have been committed 22 years prior.  The jury found Mr. Nisbett guilty and assessed him 42 years.

The case was reversed on December 15th, 2016 and Rex was un-convicted and acquitted by the 3rd Court of Appeals in Austin.  One more step remains, and that depends on the State's willingness to appeal to the highest court, and for that court to decide whether to review the ruling.

Read the entire opinion HERE.

The trial of Rex Nisbett should never have taken place.  The foundation of the State's case was built on uncertainty of the cause of death (if it in fact happen), with an incoherent theory of Rex' involvement, and no solid basis to prosecute a case that sat dormant through the prior administrations of Ken Anderson and John Bradley.  Neither of these prior District Attorneys were known for their timidity for prosecuting murder cases.

I was appointed April 14, 2013 and continued as counsel until after the jury made their decision on June 12, 2014.  Robert  and I were discharged on June 26th, 2014 and Kristen Jernigan was appointed appellate counsel.

Throughout the discovery phase of the trial, there was extensive research of the facts surrounding the disappearance of Ms. Nisbett by our team.  Multiple interviews of witnesses took place both in person and by phone.  The majority of the investigation was conducted by Mark Gillespie.  Interviews of the DNA specialists at the Texas Department of Safety, visual inspection of various carpet samples, and interviews with an individual who actually claimed to have seen Vicki after the alleged date of her disappearance were conducted.  The case file was voluminous, limited by the technology of the time of the investigation.

The claimed evidence generally revolved around some small blood remnants on the carpet of the bedroom, a vague print near the light switch, and some odd behavior by Mr. Nisbett.  However, none of these observations pointed to any cause of death, intent to cause death, or place of death.  In other words, there was no evidence of any criminal act by Rex Nisbett.

Nevertheless, the prosecution went forward fueled from a promise by a new inexperienced District Attorney to prosecute "neglected cases".  The prosecution went forward despite supposedly not having found the prosecution file from the previous administrations and claiming it had been "shredded" by the previous administration (my numerous calls to lawyers of the previous administration were met by firm denials that they ever would have done that).  It went forward despite denials of existence of our requests for grand jury transcripts and other information which happened to turn up in an evidence bin at the Sheriff's office 5 days before trial (for strategic purposes we didn't ask for a continuance).

The trial was an exercise in the lack of knowledge of the Rules of Evidence by the prosecution, an effort to undermine the presumption of innocence of the accused, and an effort to turn his right to silence against him.  It was merely a political prosecution.  The prosecutor would get her due in a different case later.

In the end, the jury was worn out by deliberating overnight and starting their second day deadlocked at 7-5.  Their deliberations went into the evening.  After receiving encouragement by the Court to deliberate more, they found him guilty just before being sent to the hotel another night.  Their reasoning for the verdict never made sense to me.

The Court of Appeals decided that there was no evidence that Rex Nisbett caused the death of Vicki Nisbett or there was the requisite mental state to determine that he intentionally or knowingly caused her death. These were the same arguments I had advanced in trial through my Motion for Directed Verdict.  The conclusion of my motion read:

In other words, the circumstantial evidence, even if it supports an inference that Rex Nisbett did something to Vicki Nisbett and that Vicki Nisbett died as a result of that something, nonetheless wholly fails to prove the mens rea Rex Nisbett possessed when he did that something to Vicki Nisbett was the mens rea for murder, as opposed to some other mens rea, such as the mens rea for manslaughter.  The jury‘s finding in this case that Rex Nisbett, with the requisite mens rea, committed an act clearly dangerous to human life that resulted in Vicki Nisbett‘s death or intentionally or knowingly caused Vicki Nisbett‘s death would be based on speculation and cannot support a finding of guilt beyond a reasonable doubt. [Legal cites ommitted] 

I was relieved to see the Court of Appeals use much of the same case law and reasoning to arrive at their judgment, relying on Stobaugh v. State, Megan Winfrey v. State, and others.

The case also presented some irony. Typically the State is organized to prove each element beyond a reasonable doubt.  The case is organized through witnesses and documentary evidence to prove each and every element down to the intent, time, and location.  The Defense on the other hand, often tries to distract away from the law, pulling at heart strings, exuding sympathy, and/or even fostering disdain for the law, but always concentrates on holding the state to their burden. However, in this case, it turned out to be our mission as the defense team to stay focused on the law and the State's burden of proving each and every element of the offense.  In the end, the jury was swayed more by Rex' odd behavior than any evidence pointing to his guilt. The State could never decide what theory to push, whether it be choking, head injury, or some other theory because they simply did not have evidence of any of those that resulted in Ms. Nisbett's death.  And even in the State's explanation of the case to this day, could they ever proffer anything but innuendo and guess work, all refuted by the Court's opinion.

This case has dogged me for 2 and 1/2 years.  And while it is over for me now, There is one more step for Rex.  He is crossing his fingers that the Court of Criminal Appeals will not find flaws in the reasoning of the Court of Appeals.  After that, this case will no doubt open up wounds for a family and healing for another. The only closure for all, will be to find out what really happened to Vicki Lynn Nisbett.

See news reports HERE and HERE.

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