Court of Criminal Appeals of Texas Sets Aside Murder Conviction After Medical Examiner Changes Cause of Death

On Friday, I posted an entry about a 2014 California law that allows defendants to receive new trials when expert witnesses recant their testimony. As the recent opinion of the Court of Criminal Appeals of Texas in Ex Parte Robbins, 478 S.W.3d 678 (Ct.Crim.App.Tx. 2016), makes clear, the Lone Star state enacted a similar law in 2013.

In, Robbins, “Neal Hampton Robbins, was convicted in 1999 of the capital murder of his girlfriend’s seventeen-month-old daughter, Tristen Rivet.” This conviction was based in part upon assistant medical examiner Dr. Patricia Moore’s conclusion that the “cause of Tristen’s death was asphyxia due to compression of the chest and abdomen and that the manner of death was homicide.” Subsequently,

The deputy chief medical examiner for Harris County, Dr. Dwayne Wolf, undertook a re-evaluation of the autopsy findings. After reviewing the testimony adduced during Applicant’s trial, the autopsy report, the EMS and medical records, and the police offense report, Dr. Wolf concluded that Moore’s observations during the autopsy did not support a finding that the death resulted from asphyxiation by compression or from any other specific cause. Consequently, on May 2, 2007, Wolf amended Tristen’s autopsy report to reflect that both the cause and manner of death was “undetermined.” And so on the following day, Justice of the Peace Edie Connelly formally reopened the inquest into Tristen’s death.

Shortly thereafter, former Harris County Medical Examiner Joye Carter was asked by the Montgomery County District Attorney’s Office to review Moore’s autopsy report. Carter had been Moore’s supervisor and had agreed with Moore’s original opinion. In a May 10 letter to the district attorney, she wrote, “Upon my review of this case I would not concur with the opinion on the manner of death as a homicide but would reconsider this case as an undetermined manner,” and “If the Harris County Medical Examiner intends to re-rule this case as an undetermined manner of death I would agree with that change.”

Moore, too, was asked by the Montgomery County District Attorney’s Office to review her autopsy report. In a May 13 letter to the district attorney, she 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.

Moore explained that since her original opinion, she has had more experience, and she has reviewed additional information that suggested that the bruises could have resulted from aggressive CPR and other efforts to assist the child. She emphasized that it was significant that aggressive adult-type CPR by untrained persons was performed on Tristen, a 17–month–old child.

This allowed Robbins to file for habeas relief pursuant to Section 11.073 of the Texas Code of Criminal Procedure. Added in 2013, this Section provides in pertinent part as follows:

Art. 11.073. PROCEDURE RELATED TO CERTAIN SCIENTIFIC EVIDENCE.

(a) This article applies to relevant scientific evidence that:

(1) was not available to be offered by a convicted person at the convicted person’s trial; or

(2) contradicts scientific evidence relied on by the state at trial.

(b) A court may grant a convicted person relief on an application for a writ of habeas corpus if:

(1) the convicted person files an application, in the manner provided by Article 11.07, 11.071, or 11.072, containing specific facts indicating that:

(A) relevant scientific evidence is currently available and was not available at the time of the convicted person’s trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person’s trial; and

(B) the scientific evidence would be admissible under the Texas Rules of Evidence at a trial held on the date of the application; and

(2) the court makes the findings described by Subdivisions (1)(A) and (B) and also finds that, had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted.

The Court granted Robbins relief and set aside his conviction under this Section, concluding 

on the preponderance of the evidence that, had this evidence been presented at trial, the applicant would not have been convicted. Moore’s original trial testimony was the only evidence presented claiming conclusively that Tristen died as the result of a homicide. The State also emphasized her testimony in its closing statement when arguing to the jury that the applicant caused Tristen’s death. It is hard to imagine any reasonable jury’s returning a conviction when no one can even say confidently that a murder has been committed.

-CM