In 1998, a Harris County associate medical examiner ruled that 17- month old Tristan Rivet died as a result of homicide, and a Montgomery County jury decided that Neal Robbins killed her.
In 2007, the same medical examiner decided she made a mistake, and that the cause of death should have been "undetermined." The Harris County Medical Examiner's Office agreed, and amended Rivet's manner of death. The infant was no longer officially a homicide victim. But Robbins is still serving a life sentence for her homicide. Oops.
But now, Robbins' attorney believes his client has a real shot at a new trial, thanks to a new law addressing the sticky situation of defendants who were convicted on the basis of scientific evidence that was later discredited.
Here's the background: Rivet's mother, Barbara Hope, found the infant unconscious in her crib on May 12, 1998, several hours after Trivet had been left in Robbins' care. While waiting for paramedics, according to trial records, Hope and several neighbors performed CPR on Rivet, and at one point one person stuck a finger down the girl's throat in an apparent attempt to loosen her airway.
Robbins and his lawyer, Brian Wice, have maintained that the bruising discovered during the child's autopsy were the result of vigorous chest compressions. But then-Harris County associate medical examiner Patricia Moore believed the injuries indicated Rivet had been asphyxiated, and declared her death a homicide.
The jury didn't buy the defense experts, who said they felt the manner of death was inconclusive. Montgomery County
District Attorney Mike McDougal's prosecutors' closing arguments relied heavily on Moore's finding. (There's also this: A friend of Rivet's mother believed Robbins had previously abused Rivet; and Rivet also suffered injuries -- including a bruised face -- on at least three occasions while she was in Robbins' care.)
Four years later, officials at the Harris County Medical Examiner's Office announced that they had investigated Moore's work and found problems. A resulting story in the Chron revealed that officials "reclassified a child's autopsy that Moore originally labeled as a homicide." (Moore left the ME's Office in 2002 and works for a private forensic lab).
Moore's new opinion, according to court records, was based in part on information Moore said she didn't have at the time of the autopsy -- namely the aggressive CPR performed on Rivet. Moore also attributed her new opinion to experience she'd gained since the autopsy.
Court files also show that Joyce Carter, the Chief Harris County Medical Examiner at the time of the original autopsy, told the Montgomery County District Attorney's Office in 2007 that "1998 was a turbulent period during [Carter's] tenure" and that she no longer stood by Moore's finding.
After Rivet's manner of death was changed,
both McDougal and trial judge Michael Mayes supported Robbins' appeal to the Texas Criminal Court of Appeals, with Mayes recommending the CCA order a new trial. The CCA didn't, and McDougal was replaced by a new district attorney, Brett Ligon, whose opinion remained firm: regardless of the new finding, Robbins had a fair trial. (Clarification: McDougal believed Robbins deserved a new trial. He was replaced by Ligon during the appeal's discovery process).
The new prosecutor on the case, Assistant District Attorney Bill Delmore, found a new expert, former Dallas County Medical Examiner Linda Norton, to say Rivet was murdered. (Delmore did not respond to calls seeking comment).
Strangely, according to court records, Norton never buttressed her opinion with sworn testimony. She only expressed her opinion in a conference call with Wice and then-assistant district attorney Gail McConnell. Norton ignored subpoenas and dodged deposition dates. Ultimately, in 2011, Norton voluntarily surrendered her medical license. Texas Medical Board records state that Norton informed Board officials that "she is no longer able to practice medicine due to a diagnosis of depressive order, considered a mental condition." (We reached out to Norton through a family member, but we did not hear back).
Wice -- not generally known for being a shrinking violet -- is candid about Norton's involvement in the case,as well as any future experts prosecutors might retain in the event of a new trial: "As long as experts are for hire, justice is for sale," he told Hair Balls. (Wice seems especially testy when it comes to the Robbins case, which, he says, is a deeply personal matter for him, which is why he's working pro-bono).
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Around the same time Norton tendered her credentials, lawyers Jim Blackburn and Gary Udashen, who work with the Innocence Project of Texas, and Austin-based criminal justice watchdog Scott Henson crafted a bill meant to offer relief to defendants convicted on the basis of scientific "evidence" that, post-conviction, was discredited. ( Henson's blog gritsforbreakfast.blogspot.com is required reading for anyone interested in Texas' often slow-spinning wheels of justice).
Wice and others testified in support of the bill before a senate committee this year -- the third attempt to pass the bill -- and it finally passed, going into effect September 13. Armed with the new law, Wice filed yet another appeal, and the CCA -- which has twice denied Robbins' appeals -- in late November ordered both sides to submit briefs.
Wice describes the new law as "a failsafe mechanism that really is designed to kind of clean up the scientific junkyard that's out there....This statute recognizes that when an expert's opinion -- or the underlying science on which that opinion is based -- has now been contradicted, then a defendant shouldn't have to rot in prison because an expert got it wrong the first time around."
Wice says he'd be surprised if the Court will make a ruling by the end of their term in June. Right now, it's the same waiting game he and Robbins have been playing since 1999. Even though this latest appeal is based on new law, Wice says he's mindful of previous failed attempts, telling us, "In 30-plus years of doing what I've done, this is the most bitter defeat that I've had -- period."