Court Upholds New Trial on Junk Science Case, But in a Very Weird Way

Tristen Rivet
Tristen Rivet
Courtesy Barbara Hope

In a decision that flustered some of its own judges, the Texas Court of Criminal Appeals has — in a baffling manner —  again decided that a man who was convicted of killing his girlfriend's infant daughter in 1999 should be granted a new trial because the cause of death was later found to be undetermined. 

Robbins was convicted of killing 17-month-old Tristen Rivet. Assistant Harris County Medical Examiner Patricia Moore testified at trial that bruising on Rivet's chest indicated that the child had been asphyxiated. But in 2007, after findings in some of Moore's other cases had been called into question, Moore revisited Rivet's case and changed her mind: The cause of death, she now said, would have to be "undetermined."   

The CCA in November 2014 ruled in a 5-4 decision that Robbins deserved a new trial, based on a 2013 state law allowing appellants to argue that their convictions were based on junk science presented at trial. Some of the dissenting judges argued that Moore's testimony didn't meet the new law's definition of faulty science, because an individual expert's change of mind doesn't reflect a change in the underlying science.

But Judge Cheryl Johnson opined that that's a distinction without a difference, saying, "'Bad science' and 'bad scientists' are inseparable."

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The CCA later granted the State's motion for a rehearing; three of the judges were set to retire, and prosecutors hoped the new blood would see things differently. Robbins's pro bono appellate attorney, Brian Wice, and prosecutor Bill Delmore would now have to argue again. 

As Wice told us shortly before the June 2015 rehearing, "I felt like Michael Corleone in Godfather III. Just when I thought I was out, they pulled me back in."

Between the CCA's November 2014 ruling and the June 2015 rehearing, legislators amended the junk science law to address the argument raised by the dissenting judges, expanding the law to include not just discredited science but individual discredited scientists, as well as those who change their opinion. 

Last week, seven months after the rehearing, the CCA reached a decision. Sort of. 

Here's where things get confusing for most normal people — i.e., non-lawyers: Ostensibly, the CCA could have upheld its 2014 decision based on the original 2013 junk science law, or it could have incorporated the amended law into a new opinion. The Court surprised everyone by doing neither.

Instead, a majority of judges decided that the rehearing should not have been granted in the first place, meaning that the November 2014 decision stood, but with no clear explanation as to what version of the law the Court believed should apply to Robbins.

To be clear, this has no practical implication for the Robbins case, but Wice said it could spell confusion for cases in the pipeline that were filed after the original law but before the amended version. 

And to the judges who passed on the chance to render a clear verdict, Wice busted out another Godfather reference: "With all due respect, they're going to have to answer for Santino." 

Still, Wice said he's pleased that, as puzzling as the Court's behavior was, the November 2014 decision was still an important ruling.

"Today's decision reaffirms the fundamental tenet that in the 21st Century, where forensic experts are the high priests of the criminal justice system, juries can not only be blinded by bad science but by bad scientists," Wice explained in an email.

Wice wasn't the only one questioning some of the judges — Judge Elsa Alcala also took umbrage with a few of her peers.

Alcala, who ruled in Robbins's favor in 2014 and who also voted against granting a rehearing on the case, issued what's defined in legal terms as a WTF?! concurring opinion. By flip-flopping, Alcala wrote, "this case will, for a very long time, leave an indelible stain on this Court's reputation for providing a fair forum for all litigants."

She also wrote:

"What is going on here? I do not envy the position of future litigants who must try to decipher this Court's position on when relief is warranted under the new-science statute. Because of the strategic maneuvering that has plagued this case now for more than a year, the answer to that question is entirely unclear." 

We reached out to the Montgomery County District Attorney's Office for comment, and will update if we hear back.

In all the technical gobbledygook and contrived legal wranglings that have come to define the Robbins case, it's easy to forget that there is still an officially unexplained death, and there is still a grieving mother who doesn't believe Robbins is innocent.

"He lucked out that Patricia Moore did the autopsy on Tristen," Barbara Hope told the Press.

Needing a fresh start, Hope moved from Texas after her daughter died. Unable to visit the grave, she hopes to have Rivet relocated. She says she realizes some people might find that morbid, but she just wants to be able to visit her daughter. Rivet's birthday, and holidays, are especially rough.

She said Robbins was acting strange the day Rivet was found dead in her crib. He seemed jittery, anxious to leave the mobile home after Hope returned from running errands that day. Hope said Robbins told her several times not to go check on the baby, because he had just put her down. By the time she did, she said, she found her daughter cold to the touch, with the ceiling fan on its highest setting and a pillowcase over the girl's face. 

"The whole thing is a nightmare," Hope said. "Even though he gets out of prison, I don't. And none of it brings her back."

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