The state Court of Criminal Appeals will hear arguments Wednesday in the curious case of Neal Hampton Robbins, convicted in Montgomery County in 1999 of killing his girlfriend's 17-month old daughter, and sentenced to life in prison. It's the first time the CCA will hear arguments under a 2013 statute addressing convictions alleged to have been won using bad science.
What may have been a routine murder conviction took a turn in 2007, when the medical examiner who originally ruled Tristen Rivet's death a homicide, and who provided strong testimony for the state, reviewed the autopsy and decided that there was not enough evidence to conclude the child was murdered. The death certificate was amended to "undetermined." Of course, the fact that homicide was off the table had no immediate bearing on Robbins, who remained in prison.
The Ninth Court of Appeals affirmed Robbins' conviction, but in 2010, trial judge Michael Mayes recommended the case be reviewed by the Court of Criminal Appeals. (Mayes called Moore's original testimony "expert fiction calculated to attain a criminal conviction.") In 2011, the Court voted 5-4 against granting a new trial, and the U.S. Supreme Court declined to hear the case the same year.
But in 2013, the state legislature passed a stunning measure -- a statute that allows convicted defendant to seek a new trial if they can prove the conviction was based on faulty science, or scientific evidence unavailable at trial. (The Atlantic called it a "groundbreaking new Texas law, the only one of its kind in the nation, which recognizes that science can get it wrong.")
Wice, who testified in support of the bill before a senate committee, believes the Robbins case is exactly the kind of case the new law was meant for. He argues that, because prosecutors relied chiefly on expert witness testimony from medical examiner Patricia Moore, who later changed her opinion, the conviction was unjust.
The Innocence Project of Texas agrees, writing in an amicus brief, "If a trial court heard her testimony, and then heard her re-evaluation, there is little doubt that the trial testimony would be excluded as unreliable. Dr. Moore's re-evaluation of her testimony, based on her greater scientific knowledge, would certainly result in a not guilty verdict since the original, unreliable testimony would not be presented to the jury."
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However, state prosecutors argue that Moore's change of opinion does not meet the standard of unavailable or faulty science as it's described in the new statute. Prosecutors point out that Robbins' defense team presented their own medical expert witnesses to rebut Moore.
"....there is no new scientific evidence that was not ascertainable at the time of [Robbins'] trial," the state argued in its brief to the CCA. Moreover, prosecutors argue, the fact that Moore later changed her mind does not mean her testimony at trial was false.
Wice, of course, calls the state's interpretation of the law "myopic," writing in his reply to the state's brief, that Moore "did not merely change her mind or switch sides: the change in her opinion as to the manner and cause of death was not a recantation or 'buyer's remorse,' but a reevaluation on her increased training, experience and expertise without any bias, passion, sympathy or prejudice for [Robbins] or anyone else in this case. Simply put, she engaged in the scientific method to determine if her original hypothesis was correct."
Something tells us there will be nothing simple about tomorrow's arguments. We expect things to get pretty heated, and will report back after the dust has settled.