Splitting hairs and denying relief

In 1999, Neal Hampton Robbins was convicted of capital murder in the death of his girlfriend's 17-month-old child. In 2011, the Texas Court of Criminal Appeals denied his request for relief due as a result of "false or misleading testimony."

During the investigation into the death of the child, Dr. Patricia Moore of the Harris County Medical Examiner's Office was asked to conduct an autopsy. She concluded in her report that the child died due to "asphyxia of the chest and abdomen" and that the child was the victim of a homicide. At trial, the defense expert, Dr. Robert Bux of the Bexar County Medical Examiner's Office testified that the cause and manner of death could not be determined.

In 2007, Dr. Dwayne Wolf of the HCMEO was asked to review Dr. Moore's findings in the case. In May of that year, Dr. Wolf amended the death certificate to indicate that the cause and manner of death could not be determined. Dr. Moore's supervisor at the time of the autopsy, Dr. Joye Carter, told Montgomery County prosecutors that she concurred with Dr. Wolf's findings.

Then Dr. Moore sent a letter to the Montgomery County DA's Office and stated:

I believe that there are unanswered questions as to why the child died, and I still feel that this is a suspicious death of a young child. Given my review of all the material from the case file and having had more experience in the field of forensic pathology, I now feel that an opinion for a cause and manner of death of undetermined, undetermined is best for this case.

Dr. Moore went on to state that since the date of the autopsy she had received additional training and believed that the bruises on the child's body could have been caused by aggressive CPR or other attempts to revive the child.

In June 2007, Mr. Robbins filed a writ of habeas corpus asking that his conviction be vacated as the result of newly discovered evidence. The State of Texas, in its initial response, concurred. The trial court, however, appointed another forensic pathologist to review the documents in the case. Dr. Thomas Wheeler of the Baylor College of Medicine also concluded that the cause and manner of death could not be determined.

A Montgomery County Justice of the Peace then appointed another forensic pathologist to review the case. This time the state got what it wanted - Linda Norton concluded that the child was suffocated. She said she believed the child was murdered but could not state beyond a reasonable doubt that Mr. Robbins killed the child.

In August 2008, both Mr. Robbins and the state prepared findings of fact and conclusions of law stating that Mr. Robbins was entitled to a new trial. However, after Ms. Norton reaffirmed her opinion that the child was murdered, the state changed its tune and urged the court not to grant any relief to Mr. Robbins.

In January 2010, the trial court denied relief for Mr. Robbins stating that the changed opinion of an expert witness was not sufficient to overturn a jury's decision to convict.

Last month the Texas Court of Criminal Appeals ruled that since Dr. Moore's trial testimony hadn't been proven false, that Mr. Robbin's claim of actual innocence failed. The majority found that Dr. Moore's changed opinion did not render her trial testimony false. The court relied on the fact that Dr. Moore testified "openly" about her findings and conclusions.

The court's rationale was that no one testified that Mr. Robbins didn't commit the murder.

Here, similar to the criminalist's testimony that she could not positively identify the sample, cross-examination by the Applicant established that Moore's testimony was her professional opinion and that she was not ruling out other reasonable hypothesis by which Tristen died. In addition, like the criminalist's testimony, that asphyxia was the cause and homicide the manner of Tristen's death has not been entirely refuted. As the convicting court determined, "[n]o expert rules out asphyxia as the cause of death," "[n]o expert can exclude Applicant as the perpetrator if it is a homicide, and no expert has excluded homicide as the manner of death." During the habeas proceedings, various experts have opined that the autopsy findings do not adequately support Moore's conclusion that the death was a homicide by asphyxiation (and Moore herself has adopted that position, but none of the experts have stated that Tristen could not have been intentionally asphyxiated. And although they critique Moore's interpretation of the petechiae evidence upon which she relied at trial, the "non-specific" indicator cannot be ruled out as being the result of asphyxiation. On the other hand, at least one well-qualified pathologist, Dr. Norton, has concluded that the child was a victim of homicide by asphyxiation.

In dissent, Judge Alcala (the newest member of the panel) argued that the majority was splitting hairs and denying Mr. Robbins the relief to which he was entitled. She wrote:

The record shows that, as the sole witness establishing cause and manner of death for the State at Robbins's trial, Dr. Moore testified that, based on her scientific opinion beyond a reasonable doubt, the cause of Tristen Rivet's death was asphyxia due to compression of the chest and abdomen, and the manner of death was homicide. In her evidence concerning this application for a writ of habeas corpus, she now concludes that the cause of death was, beyond a reasonable doubt, not compression asphyxia, and undeterminable as to homicide, asphyxial or otherwise. Dr. Moore's subsequent testimony is a complete refutation of her trial testimony because, although her trial testimony stated that, beyond a reasonable doubt, the cause of death was compression asphyxia and the manner of death was homicide, she now says that the cause and manner of death are, beyond a reasonable doubt, "undeterminable." Both positions cannot be true. This wholesale refutation of her previously professed scientific certainty nullifies the veracity of the conclusion itself... 

Perhaps Dr. Moore's testimony could not be called "false" if, for example, she consistently determined, beyond a reasonable doubt, that the manner and cause of death could be established with scientific certainty and that the manner of death was homicide, but was uncertain whether the cause of death was asphyxia by some means other than compression. See Berger v. United States, 295 U.S. 78, 82 (1935) ("The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to 'affect the substantial rights' of the accused."). But Dr. Moore's changed testimony is not merely a variance in proof. Her present position acknowledges that the cause and manner of death could possibly be natural causes or homicide and that both are equally likely. An acknowledgment that trial testimony could possibly be correct because no one can determine the cause and manner of death with scientific certainty is vastly different from evidence that the cause and manner of death are proven beyond a reasonable doubt with scientific certainty. I, therefore, agree with the trial court's assessment that the record shows that Dr. Moore's testimony was false.

Mr. Robbins should receive a new trial. While Dr. Moore didn't lie on the stand during Mr. Robbins' trial, she has re-evaluated her findings and she has come to a new conclusion. That new conclusion contradicts the testimony she gave at trial. Had the jury heard this new testimony, the question becomes was there a murder?

I think we owe it to Mr. Robbins to find out.