A video recording that McLennan County prosecutors mistakenly played for jurors Thursday has placed a guilty verdict in a capital murder case in jeopardy.

Attorneys for the defendant, Tyler Sherrod Clay, asked 54th State District Judge Matt Johnson for a mistrial in the murder-for-hire case, saying that jurors were shown video evidence that the judge had excluded. In an unusual move, Judge Johnson accepted the jury’s guilty verdict Thursday but did not enter a judgment or sentence Clay pending a Dec. 20 hearing on the mistrial motion filed by defense attorneys Randy Schaffer and Melanie Walker.

Jurors deliberated about three hours Thursday before convicting Clay, the 29-year-old former owner of a Waco smoke shop, of hiring Keith Antoine Spratt to kill Joshua Ladale Pittman in December 2015. Prosecutors said during the four-day trial that Clay wanted Pittman killed out of revenge because Pittman reportedly robbed Clay after a dice game.

A four-time felon, James Spears, testified that Clay first asked him to kill Pittman, but Spears was jailed on aggravated robbery charges and could not follow through. In jail, Spratt later told Spears that Clay paid him $15,000 to kill Pittman, and that Clay still owed Spratt $5,000 for the hit job.

Spratt, 30, also is charged with capital murder. His case remains pending in 19th State District Court.

Schaffer asked for a mistrial in a meeting in the judge’s chambers in the middle of closing statements by Assistant District Attorney Hilary LaBorde. But he also requested that Johnson defer his ruling on the mistrial request until after the jury returned its verdict.

After Clay was convicted, Schaffer renewed his mistrial request, saying that during LaBorde’s closing statements, she played a portion of a videotaped interview between Clay and Waco police Detective Melissa Thompson that the judge previously had excluded.

Prosecutor Sterling Harmon argued that by asking the judge to defer the ruling, Schaffer likely did not properly preserve his motion for mistrial. Harmon presented cases to the judge supporting the state’s position on the motion and said that no harm came to Clay, that LaBorde did not act in bad faith and any problem was cured by the judge’s instruction to the jury to disregard that portion of the video.

The judge said he wanted to study the cases offered to the court and set a Dec. 20 hearing for additional arguments. Clay will remain in the McLennan County Jail until the hearing.

If the judge rejects Schaffer’s motion, he will sentence Clay to a life prison term with no hope for parole, the automatic sentence in capital murder cases in which the death penalty is not pursued.

Schaffer’s motion was prompted during LaBorde’s summation, when she said she grabbed the wrong disc and inadvertently played a portion of a video — two sentences — that the judge had ruled inadmissible.

In the video, Clay tells Thompson, “I have never told anyone that Pittman robbed me. I don’t know why anyone would say that. I have never said that.” The judge ordered the last two sentences stricken.

“The video that was in evidence was sitting on that desk,” Schaffer said. “If you are telling me a prosecutor trying a capital murder case can’t get a video that was in evidence and put it in a machine instead of grabbing the video that’s been excluded, do they deserve to keep a conviction when they conduct themselves like that?

“This trial has been replete with discovery violations, Brady violations, the whole shooting match. There was nothing I could do from day one to get them to play straight. Of what value to this system is a conviction obtained without honor? That is the most deplorable act I have ever seen or heard any prosecutor commit in any trial in this country, much less a capital murder trial,” Schaffer told the judge.

First Assistant District Attorney Robert Moody, who tried the case with LaBorde and Christi Hunting Horse, declined comment after trial, saying he could not comment while the motion is pending.

Schaffer, of Houston, complained in pretrial hearings and throughout the trial that prosecutors did not timely provide him with evidence required to be turned over under the law and court orders, including witness lists, videos, recordings and potentially favorable offers to incarcerated witnesses. He said he was warned to expect unethical and shady dealings with prosecutors in the McLennan County District Attorney’s Office when he took the case.

Prosecutors were unable to play recorded phone conversations of Spratt talking to others from jail after Schaffer objected that the state did not provide him copies of the conversations on time. Johnson prohibited the state from playing the tapes for the jury on Wednesday after ruling that the tapes were not provided to the defense in accordance with his order.

Staff writer at the Waco Tribune-Herald covering courts and criminal justice. Follow me on Twitter @TSpoonFeed.

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