- Associated Press - Thursday, May 5, 2016

TALLAHASSEE, Fla. (AP) - A Florida woman who sat outside her home and said nothing while investigators examined her ex-husband’s bullet-ridden body will get a new murder trial after the state Supreme Court ruled Thursday that prosecutors made a mistake by using that silence to help gain a conviction.

Officers arriving at the home Donna Horwitz shared with Lenny Horwitz in 2011 asked her several questions at the scene, such as if she was in the room when 10 bullets from two guns were fired into the 66-year-old. She said nothing.

Horwitz was arrested a week later. At trial prosecutors called two investigators to testify about her silence outside the couple’s home that night, and in closing arguments a state attorney told the jury, “There is no right to remain silent at that time. You can take that as evidence of consciousness of guilt.”

No, you can’t, the Supreme Court said. Doing so violates a defendant’s right not to self-incriminate. It doesn’t matter that she wasn’t under arrest or hadn’t been read her Miranda rights, she still had the right to remain silent.

There are many reasons beyond guilt that a suspect may have for remaining silent, the court wrote in its unanimous opinion.

“An individual is just as susceptible to being in fear that his or her story will not be believed, not hearing or understanding the question, having the desire to protect another, being introverted, being in shock, or having prior knowledge of his or her Miranda rights,” it said. “A defendant, who is being questioned by the police but not yet under arrest, may be intimidated by the police questioning or may be in an emotional state.”

The Horwitzes were married and divorced twice before moving in together to try once again to reconcile. But Donna Horwitz, now 69, suspected her ex-husband was having an affair with a woman he knew professionally. His body was found in the of the couple’s master bedroom. One of the empty murder weapons was found holstered on their dresser and the other near his body.

She was sentenced to life after her first trial.

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