We don't know how 17-month-old Tristen Rivet died. Neither does the medical examiner who conducted the autopsy.
The problem is, that medical examiner once thought she knew how Rivet died.
Patricia Moore believed the toddler was murdered. And Moore testified to that effect in a Montgomery County court in 1999, when Neal Hampton Robbins was accused of that murder. Jurors also heard medical experts for the defense say that there was no way to determine if it was a homicide. But in the battle of expert witnesses, prosecutors prevailed. Robbins was sentenced to life in prison.
It's understandable how the jurors reached their conclusion.
The Montgomery County prosecutors who handled the case told jurors that "the evidence that you heard from Dr. Moore specifically and compellingly tells you" that Rivet was killed. Moore's testimony was referred to dozens of times in the rebuttal argument.
Prosecutors also denigrated the defense's main medical expert, Bexar County deputy chief medical examiner Robert Bux, as a "hired gun."
They reminded jurors that Bux didn't explain how Rivet died, only that it wasn't a homicide. Clearly, prosecutors indicated, Bux was not objective.
"Ladies and gentlemen, this is a homicide," prosecutor Robert Bartlett stressed. "Make no bones about it. This is a homicide. You had a competent medical examiner get up there and give you reasons as to why she believed this to be a homicide. There is no overcoming that, and it was not overcome by defense counsel's witnesses."
But here's the rub: in 2007, that "competent medical examiner" re-evaluated her work and drew a different conclusion. Although Moore still found Rivet's death "suspicious," there was no way to determine cause and manner of death. Her findings were changed from "homicide" to "undetermined."
Obviously, this meant that the homicide the jurors were told to make no bones about wasn't actually a homicide.
When Michael McDougal, the district attorney at the time of the trial, was made aware of this, he agreed with Robbins' appellate attorney, Brian Wice, that Robbins deserved a new trial.
But McDougal was no longer the district attorney, and his replacement didn't share McDougal's opinion. Surely there was another medical expert out there who could say it was a homicide. They sought the opinion of Joye Carter, the chief Harris County Medical Examiner at the time of the original autopsy, but Carter said she could no longer stand by Moore's original findings. It should have been ruled undetermined, Carter told prosecutors.
Ultimately, prosecutors found a pathologist to support their side: former Dallas County Medical Examiner Linda Norton. Unfortunately for them, while Norton expressed her finding in an affidavit, she was never cross-examined -- she ignored subpoenas and blew off deposition dates. In 2011, she voluntarily surrendered her medical license; Texas Medical Board records state that Norton said she suffered from depression and no longer able to practice.
The trial judge, Michael Mayes, recommended in 2010 that the case be heard by the Court of Criminal Appeals. Wice got that chance in 2011. He appealed using the arguments available to him, and any other lawyer, at the time -- actual innocence, and violation of due process because of false testimony.
The court ruled 5-4 to deny a new trial, saying that none of the medical experts' new findings "unquestionably" established Robbins' innocence, and that Moore's original testimony was not false because it "did not result in a false impression of the facts." The court explained that Moore "testified openly" and "did not omit pertinent details." Simply put: testimony that is honest but wrong is not false testimony.
But in September 2013, the state legislature passed a statute that gave attorneys another arrow for the quiver: a mechanism allowing an appeal based on an argument that the defendant was convicted by the state's reliance on false or subsequently discredited scientific evidence. Wice likes to call it the "Neal Hampton Robbins Act."
Wice got the chance to argue that act, opposite Montgomery County Assistant District Attorney Bill Delmore argued that statute, before eight of the nine-member CCA in Austin Wednesday.
This allowed Wice to showcase two of his talents: knowledge of the law, and talking. Although oral arguments before the CCA are restricted to 20 minutes for each side, we have a feeling Wice could have made Wendy Davis' filibuster seem like a quick commercial break. (Wice, who took the case pro bono,has never been a wallflower regarding his cases, but he's been especially vocal about Robbins. He testified in favor of the new statute before Sen. John Whitmire's committee and, while he's never been afraid to smack-talk, he seems to be aiming for something more than just winning a case when it comes to Robbins. For Wice, it's not just about righting a wrong he believes occurred in this case, but in the law itself: he described it to the judges as the "ultimate failsafe" mechanism for obtaining the truth).
He told the judges that Robbins was convicted on "bad science and broken promises," and argued that this was not merely a situation of "a...forensic dilettante who changes her mind the way she changes hairstyles."
The problem, Wice argued, was that "forensic experts are the new high priests of the courtroom." Robbins' conviction hinged on her word, Wice argued. Take away her word, you take away his conviction. (Problem is, you can't give back 15 years).
Delmore argued that Moore's new opinion did not meet the criteria outlined by the new statute. His position was best explained in a brief to the court, in which he opined that "'scientific evidence' in the context of this statute refers to general principles of science, rather than the the testimony of a particular witness."
Delmore told the judges that the new statute seems to allow relief "in the absence of a constitutional violation."
Wice sparred a bit with Judge Lawrence Meyers, who delivered the majority opinion in 2011. Meyers said this latest appeal was just a rehash of Wice's 2011 arguments -- the only difference being that the new statute merely "codified" those arguments.
"You have to put case law with the facts," Meyers told Wice.
"I obviously don't have your vote," Wice said.
While Delmore was probably comforted by Meyers' skepticism, he may have had a problem with judges Cathy Cochran and Cheryl Meyers, two of the previously dissenting judges.
Johnson said that the justice that the public demands in these cases should be "based solely on reliable scientific evidence that withstands the test of time."
So now the judges need to decide whether Moore's expert witness testimony should be considered "scientific evidence."
Wice maintains that the new statute was passed specifically with the Robbins case in mind. Scott Henson, who writes the excellent criminal justice blog Grits for Breakfast, and who has been following the Robbins appeals, agrees.
Henson tells us in an email that when the new statute was being considered in 2011, legislators heard from the only opposition: the Harris County District Attorney's Office.
"Their position previously had been that the law was unnecessary, that the CCA would never sustain a conviction based on erroneous science," Henson writes. "But [the 2011 Robbins decision], which came out just after the 2011 session, proved they would (or at least five of them would) and it's what made [the Harris County D.A.'s Office] back off their opposition."
Henson believes the Robbins appeal is the latest in a line of cases -- including Michael Morton's exoneration and the controversial Cameron Todd Willingham execution -- that hinge on questionable, or missing, scientific evidence.
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"...I'm more hesitant than perhaps I once was to draw conclusions without hard evidence, particularly when bad evidence was used to convict," Henson writes.
We don't know how we would have voted if we were on the jury back in 1999. But we might have given more weight to Moore's testimony than to the defense experts'.
We also don't know whether Robbins killed Rivet. But, 15 years after the conviction, prosecutors can't even produce a credible medical expert to say she waskilled. And if jurors are asked to decide the fate of a defendant charged with homicide, we feel prosecutors need to do two very important things.
One is this: Be sure they have the right defendant. The other: Be sure there's a homicide.