You've got to hand it to Montgomery County prosecutors — they'll fight tooth and nail to keep a guy in prison for homicide, even when there's technically no homicide.
The Texas Court of Criminal Appeals will rehear arguments June 3 in the strange murder-not-murder case of Neal Hampton Robbins. (The CCA ruled 5-4 in November 2014 to grant Robbins a new trial, but three of the judges who ruled in Robbins' favor have retired.)
Here's the deal: in 1999, Neal Hampton Robbins was convicted of killing his girlfriend's 17-month-old daughter, Tristen Rivet, and sentenced to life in prison. The state's case was significantly aided by testimony from an assistant Harris County medical examiner, who testified that, without a doubt, that Rivet was asphyxiated. The thing is, that examiner, Patricia Moore, took another gander at the evidence in 2007 and changed her mind. With her additional experience, she believed that the manner of death could not be determined, and the child's death certificate was amended to reflect that.
Robbins spent the next 11 years in appeals. The Montgomery County District Attorney's Office, under new management since Robbins' conviction, tried unsuccessfully to find another medical examiner to say under oath that the child was murdered. (Mike McDougal, the district attorney when Robbins was convicted, later supported Robbins' bid for a new trial, but his replacement, Brett Ligon, disagreed).
Robbins' appellate lawyer, Brian Wice, argued before the Texas Court of Criminal Appeals in 2011, but Montgomery County won that round. Then something huge happened: In September 2013, the state legislature passed a statute allowing an appellants to argue that they were convicted by the state's reliance on false or subsequently discredited scientific evidence — an argument unavailable to Wice in 2011. (Wice testified before legislators in favor of the law, which he likes to call "The Neal Hampton Robbins Act.")
Wice and Montgomery County prosecutor Bill Delmore argued the case before the CCA in March 2014, and in November 2014, the judges ruled 5-4 to grant Robbins a new trial. Shortly afterwards, three of the judges behind the majority ruling retired, and the State asked for a rehearing.
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As Wice explained in an email to the Houston Press, "The State filed a motion for rehearing, knowing that 3 of the judges who voted with the majority to grant a new trial were retiring at the end of last year and it was able to run the clock out on us, and take its chances with three new judges.... I felt like Michael Corleone in Godfather III. Just when I thought I was out, they pulled me back in."
The close call in the November 2014 ruling centered on whether the 2013 statute covered not just bad science, but testimony from bad scientists. Rep. Abel Herrero (D-Robstown) introduced a bill in the most recent legislative session to clarify that matter, explicitly stating that a court "shall consider whether the opinion of an expert who testified at the person's trial regarding the relevant scientific evidence has changed since the applicable trial date or dates." The bill passed both chambers and was sent to Governor Greg Abbott May 25.
Wice told us, in patented Wice-ese, "I'm cautiously optimistic I'm not going to snatch defeat from the jaws of victory when I argue this case yet again on [Wednesday]. First, I'm confident the 3 new judges, all of whom I know and for all of whom I have tremendous respect, will see that the majority got it right back in November. Second, the Leg just passed a bill that sailed through the House and Senate committees without dissent and both chambers with a super-majority that codifies the majority's November decision. I'm cautiously optimistic the 3 new judges, and even a few of the dissenters will see that's a game-changer. And third, the arguments are a day after my birthday — the ultimate totem of good karma. The way I see it, the State won in 2011 and we won in 2014. This is the tie-breaker. I have one last opportunity to get Neal the new trial he so richly deserves. Like noted legal sage LaBron James has said, 'Nothing is given. Everything is earned.' This Wednesday morning, I'm gonna earn it. Count on it."
Scott Henson at Gritsforbreakfast has followed the history of the junk science bill, and Herrero's clarification, probably better than anyone in Texas, and recently posted his interview with Mandy Marzullo, policy director of the Texas Defender Service, which discusses the arguments in greater detail.