High Court Grants New Trial Under "Junk Science" Law

For 15 years, Neal Hampton Robbins has been serving a life sentence for a murder that may not have occurred.

The Montgomery County man was convicted of killing his girlfriend's 17-month-old daughter, Tristen Rivet. Prosecutors' strongest evidence came from Harris County assistant medical examiner Patricia Moore, who testified that the manner of death was a homicide. Problem was, Moore reviewed the evidence in 2007 and changed her mind. She revised the manner of death to "undetermined." Of course, this had no impact on Robbins's life sentence -- until November 26, when the Texas Court of Criminal Appeals ruled 5-4 to set aside the conviction and grant Robbins a new trial.

The court had reviewed Robbins case once before, in 2011, and -- in another 5-4 split -- denied relief. But when Robbins's lawyer, Brian Wice, argued the case again in March, he had an expanded arsenal: A 2013 state statute allowing convicted defendants to seek a new trial if they can prove their conviction was based on faulty science, or scientific evidence unavailable at trial.

Wice himself had testified before a senate committee in support of the measure, which he likes to call "Neal Hampton Robbins Act." The court's about-face gives that nickname something called, in highly technical legal terms, street cred.

Although the official manner of death was changed, here's what we know for sure: Rivet's mother, Barbara Hope, found the child unconscious in her crib in May 1998, a few hours after Rivet had been left in Robbins's care. While waiting for paramedics, Hope and several neighbors performed CPR on Rivet, and at one point a neighbor stuck a finger down the infant's throat to try to open her airway.

The state argued that the resultant bruises on Rivet's body were caused by Robbins suffocating her. Robbins argued that they were caused by the resuscitation attempts. The jury heard from the defense's medical experts, who testified that the cause of death could not be determined, but in the end, it was Moore's testimony that carried more weight with the jury.

But in 2004, an internal investigation at the Harris County Medical Examiner's Office (now called the Harris County Institute of Forensic Sciences) revealed that Moore had a habit of making bad calls. A 2009 Chron story highlighted these problems, noting that officials had to reclassify at least four autopsies that Moore labeled as homicides. (Moore left the medical examiner's office in 2002, and at the time of the Chron story, worked at "Southeast Texas Forensic Center, a Conroe-based company that provides forensic work for six counties.")

While Wice used the revised finding in his appeals, prosecutors scrambled to find a new medical expert willing to testify that Rivet was murdered. The closest they got was former Dallas County medical examiner Linda Norton, who only expressed her opinion in talks with Wice and a prosecutor, but was not willing to give sworn testimony. (Norton voluntarily surrendered her medical license in 2011.)

Despite the new questions surrounding Rivet's death, and despite the fact that no medical expert could say for sure that she was even murdered, it took the passage of a new law to remedy what Judge Paul Womack pointed out was a staggeringly obvious problem.

Delivering the majority opinion, Womack wrote that "Moore's original trial testimony was the only evidence presented claiming conclusively that Tristen died as the result of a homicide....It is hard to imagine any reasonable jury's returning a conviction when no one can even say confidently that a murder has been committed."

But four of the judges dissented, believing that Moore's revised opinion did not meet the 2013 statute's definition of a change in "scientific knowledge," arguing that an individual scientist's change of mind doesn't amount to the type of "junk science" described in the law. Wice, of course, held up his client's conviction as precisely the kind of case the new law was meant to address.

Judge Cathy Cochran agreed, writing that "regardless of whether a conviction is based on an unreliable field of science or unreliable scientific testimony, the result is the same: an unreliable verdict that cannot stand the test of time."

Cochran also cited a Houston Lawyer article that stated, "The tipping point in the [2013 statute] was most likely the procedurally complex case of Neal Hampton Robbins." We're pretty sure Cochran's was Wice's favorite opinion, because the justice suggested that part of the statute's "charm" was attributable to Wice's legislative testimony. (We heard that Cochran signed off on her original draft with "XOXOXO" and a big poofy Valentine's heart.)

Dissenting Judge Michael Keasler weighed in on the love-fest, writing that "it is unsatisfying to rely on Robbins's counsel's own testimony to support the conclusion that the Legislature intended the statute to apply to a changed individual's opinion."

Notably, in a dissenting opinion we can only describe as "sourpuss," Judge Lawrence Meyers wrote that the new law was not only vague but "a clear attempt at a power grab" by legislators who want to "tell us how we should rule on these types of matters." We half-expected his honor to write that he was taking his ball and going home.

In an email to the Press, Wice noted how the opinion was handed down the day before the day "that reminds us how thankful we should all be," and said, "In a case where I was proud to work for free, and where we were always 3-touchdown underdogs," he was "reminded of the real reason why I went to law school: it's not about live shots and sound bites on national TV; it's about being blessed with the power to change people's live for the better." (We believe him -- but still, the dude does have a gift for sound bites).

He added, "The CCA decision fortifies the notion that the criminal justice system makes two promises to any citizen accused of any crime: a fair trial and a reliable result. And when expert testimony, as in Neal's case has been discredited and cannot withstand the test of time, that expert -- in the words of Mark Twain -- is just some guy from out of town. The CCA decision makes it clear that these two promises are far too important to be broken."

Robbins will be transferred to the custody of the Montgomery County Sheriff's Office, and Wice said he'll ask for Robbins's release on bond.


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