Appeals Court to Weigh Value of Advances in Forensic Evidence

Texas’ highest criminal court will hear arguments Wednesday in a case that could affect how evolving scientific evidence is used in courtrooms across the state.

For Neal H. Robbins, the high court’s decision will determine whether he gets another shot at arguing his innocence. 

In 1999, a jury convicted Robbins of killing his girlfriend’s 17-month-old infant. A key witness in the case was Patricia Moore, a Harris County medical examiner who ruled the child’s death was homicide by asphyxiation. 

But in 2007, after a different medical examiner reviewed the original findings and disagreed, Moore recanted her trial testimony. In a letter to the district attorney, she wrote that while the infant’s death remained “suspicious,” she had come to believe that “a cause and manner of death of ‘undetermined’ is best for this case,” rather than homicide.

Robbins appealed, but in 2011, the Texas Court of Criminal Appeals, the state's highest criminal court, denied a new trial by a vote of 5-4. In the majority opinion, Justice Larry Meyers wrote that despite her recantation, Moore’s original trial testimony had not been “proven false.”

Now, Robbins is hoping a new law passed by the Legislature in 2013 will cause the court to change course and give him another shot to prove his innocence. The law, Senate Bill 344, by Sen. John Whitmire, D-Houston, allows courts to grant post-conviction relief in cases where scientific testimony that was essential to a conviction has been contradicted. A lower court judge has recommended that Robbins be granted a new trial, but the CCA will make the final call.

Brian Wice, Robbins’ attorney, said the result of Wednesday’s hearing will indicate how broadly the court will interpret the new law, and has implications for future cases involving scientific testimony that is later contradicted.

“In my estimation, the stakes couldn’t be higher,” he said. “It requires the court to interpret what this statute means.”

Forensic evidence, he added, often holds tremendous sway in jury decisions.

“In the 21st century, the CSI effect essentially makes forensic pathologists the high priests of the courtroom,” Wice said. “Those are the people to whom the jury turns for truth.”

At issue in Wednesday’s proceedings will be whether new science caused the medical examiner to renounce her testimony, or whether she simply changed her mind.

Prosecutors in the case contend the latter, and that the new law does not apply.

"Our argument is that this statute was not intended to apply when a witness just changes sides, or changes her opinion based on existing science," said Bill Delmore, assistant district attorney in Montgomery County. "Everybody seems to agree that there’s been no advance in forensic pathology that’s informing these experts. Basically, they're trying to pound a square peg into a round hole."

Delmore said other evidence points to Robbins' guilt, including bruising on the infant at the time of death. He said Robbins had previously inflicted other injuries on the child.

Wice said prosecutors did not prove Robbins' guilt. In recanting her testimony, the medical examiner wrote that, "Having had more experience" she believed it was possible that bruises on the infant's body resulted from aggressive CPR performed by the mother after she found the dying child. 

"Sometimes we don't know why a young child dies, sometimes we can't know," Wice said. "Every crime is a tragedy, but every tragedy's not a crime."

Scott Henson, author of the criminal justice blog Grits for Breakfast, worked on a version of Whitmire’s bill in 2009. He said prosecutors originally fought the bill — which failed both in 2009 and 2011 — because they thought it was unnecessary.

Henson said the new law is indicative of changing ideas about the role some forensic evidence plays in the courtroom.

“These forensics that have been used for hundreds of years are having science applied to them for the first time and are being found wanting,” Henson said. “It’s sort of a pivotal, historical moment for junk science and forensic science across the board.”