Robbins, Neal Hampton

Opinion

WR-73,484-02

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

June 2, 2015 Transmitted 6/1/2015 5:22:49 PM Accepted 6/2/2015 8:06:32 AM ABEL ACOSTA

IN THE CLERK COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EX PARTE § § § NO. WR-73,484-02 §

NEAL HAMPTON ROBBINS §

____________________________________________________

AMICUS CURIAE BRIEF

OF THE INNOCENCE PROJECT

____________________________________________________

BARRY C. SCHECK NY Bar Number: 1634765

BRYCE BENJET TX Bar Number: 24006829

THE INNOCENCE PROJECT 40 WORTH STREET SUITE. 701 NEW YORK, NEW YORK 10013 (212) 364-5340 (212) 364-5341 FAX

Attorneys for Amicus Curiae

TABLE OF CONTENTS

Page

Table of Contents ............................................................................................i

Index of Authorities ...................................................................................ii-iv

Interests of Amicus Curiae .............................................................................2

A. Article 11.073 Creates a Needed Remedy Where a Criminal Conviction Is Based on Unreliable Scientific Evidence ......................3

1. Unreliable Scientific Evidence Is a Leading Cause of Wrongful Convictions ...............................................................3

2. Article 11.073 Represents a Broad Legislative Response to the Problem of Unreliable Scientific Evidence ....................................................................................7

B. Article 11.073 Applies to Dr. Moore’s Changed Medical Opinion ................................................................................................9

C. Article 11.073 Balances the Interests of Finality and Accuracy in Criminal Cases ...............................................................14

Conclusion and Prayer .................................................................................15

Certificate of Service ...................................................................................17

Certificate of Compliance ............................................................................18

i

INDEX OF AUTHORITIES

Cases Page

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) .......................................................7

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ..........................................................................8

Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010) .......................................................5

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) ...................................................................................6, 8

Dist. Attorney's Office for Third Judicial Dist. v. Osborne, 557 U.S. 52 (2009) .......................................................................................15

Ex Parte Brooks, 219 S.W.3d 396 (Tex. Crim. App. 2007) .................................................7, 15

Ex Parte Calderon, 309 S.W.3d 64 (Tex. Crim. App. 2010) .......................................................11

Ex Parte Robbins, No. WR-73,484-02, 2014 WL 6751684, (Tex. Crim. App. November 26, 2014) .................................................Passim

Ex Parte Coty, 418 S.W.3d 597 (Tex. Crim. App. 2014) .......................................................4

Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) ..........................................................................8

Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) .......................................................8

Rosen v. Ciba Geigy Corp., 78 F.3d 316 (7th Cir. 1996) ............................................................................8

ii

Schlup v. Delo, 513 U.S. 298 (1995) .....................................................................................15

Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006) .......................................................7

Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010) .......................................................8

Codes and Rules

Tex. Code Crim. Proc. Art. 11.073 .......................................................Passim

Tex. R. Evid. 702 .....................................................................................8, 14

Legislative History

House Comm. On Crim. Jurisprudence, Bill Analysis, 84th Leg. R.S. (bill heard on April 22, 2015) ................................................13

H.J. of Tex. 83rd Leg., R.S. 3407-08 (2013) .................................................12

H.J. of Tex. 84th Leg., R.S. 2984 (2015) ......................................................13

S.J. of Tex. 83rd Leg., R.S. 588 (2013) .........................................................12

S.J. of Tex. 84th Leg., R.S. 1884 (2015) .......................................................13

Senate Research Center, Bill Analysis, Tex. H.B. 3724, 84th Leg. R.S. (May 15, 2015) ...........................................13

Witness List, Senate Committee on Criminal Justice, Tex. S.B. 344, 83rd Leg. R.S. (March 12, 2013) ..........................................11

Published Reports and Articles

Brian Rogers, Ex-Crime Lab Analyst Told HPD Colleagues of Wrongdoing, Houston Chronicle (June 25, 2014) .........................................4

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David L. Faigman, The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science, 46 U.C. Davis L. Rev. 893, 928 (2013) .........................................................8

Hon. Donald E. Shelton et. al., A Study of Juror Expectations and Demands Concerning Scientific Evidence: Does the "CSI Effect" Exist?, 9 Vand. J. Ent. & Tech. L. 331, 357 (2006) ..................5

Michael R. Bromwich, Final Report of the Independent Investigator for the Houston Police Department Crime Laboratory and Property Room (June 13, 2007) .....................................................................4

National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward (2009) ................3, 6

Simon A. Cole & Rachel Dioso-Villa, Investigating the "CSI Effect' Effect: Media and Litigation Crisis in Criminal Law, 61 Stan. L. Rev. 1335, 1351-52 (2009) ..........................................................5

Strengthening Forensic Science, NACDL Austin, Texas (2010) ...................6

Texas Criminal Justice Integrity Unit 2009 Annual Report of Activities.......5

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IN THE

COURT OF CRIMINAL APPEALS AUSTIN, TEXAS

EX PARTE § § § NO. WR-73,484-02 §

NEAL HAMPTON ROBBINS §

____________________________________________________

AMICUS CURIAE BRIEF OF THE INNOCENCE PROJECT

____________________________________________________

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

NOW COMES The Innocence Project and submits this Amicus

Curiae Brief in the above styled and numbered case. The Innocence Project

submits this Brief in support of the Applicant Neal Robbins because the

proper construction of Article 11.073 is vital to ensuring an avenue for relief

where faulty scientific evidence has led to a wrongful

conviction. Consistent with the clear legislative history and the plain

language of the statute, this Court should confirm that Article 11.073 applies

to cases, like Robbins, where the scientific evidence relied on by the State is

contradicted by a new and credible scientific opinion.

2

Interest of Amicus Curiae The Innocence Project, Inc. is a nonprofit legal clinic and resource

center created by Barry C. Scheck and Peter J. Neufeld. Founded at the

Benjamin N. Cardozo School of Law in 1992, the Innocence Project

provides pro bono legal services to indigent prisoners for whom post-

conviction DNA testing of evidence can yield conclusive proof of

innocence. The Innocence Project pioneered the post-conviction DNA

litigation model that has to date exonerated 329 innocent persons, and served

as counsel or provided critical assistance in a majority of these cases.

The advent of forensic DNA testing and the use of such testing to

review criminal convictions have provided scientific proof that our system

convicts innocent people, and that wrongful convictions are not isolated or

rare events. DNA testing has, thus, opened a window into wrongful

convictions so that we may study the causes of this injustice and recommend

practices to minimize the chance of its occurrence. In roughly half of the

329 recognized DNA exonerations, the misapplication of forensic science

has played a role in convicting the innocent. In these cases, forensic

scientists presented fraudulent, exaggerated, or otherwise unreliable

scientific evidence which was relied on by the judge or jury resulting in a

wrongful conviction. Because of this background, the Innocence Project

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has a particularly strong interest in ensuring that forensic evidence used to

obtain convictions is both accurate and reliable. This interest is directly

implicated in the construction of Article 11.073 of the Texas Code of

Criminal Procedure at issue in Mr. Robbins’s case.

A. Article 11.073 Creates a Needed Remedy Where a Criminal Conviction is Based on Unreliable Scientific Evidence.

1. Unreliable Scientific Evidence Is a Leading Cause of Wrongful Convictions.

The Texas Legislature enacted Article 11.073 against the backdrop of

a growing recognition that unreliable scientific evidence has led to wrongful

convictions. See Ex parte Robbins, No. WR-73,484-02, 2014 WL 6751684,

* 14-17 (Tex. Crim. App. November 26, 2014) (Cochran, J., concurring)

(Robbins II).1 In some cases, entire scientific disciplines have been either

superseded or discredited by advancements in science. See id. (discussing

discredited disciplines including arson investigation, toolmark evidence,

bullet lead analysis, microscopic hair analysis, forensic odontology); see

also generally National Research Council of the National

Academies, Strengthening Forensic Science in the United States: A Path

Forward (2009) (“NAS Report”). However, Texas has also been plagued by

instances in which forensic experts employed by government crime

1 Page references in the Robbins II opinion will be made to the Westlaw publication, a copy of which is attached as an appendix to this Brief.

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laboratories provided unreliable scientific evidence arising from perfectly

valid scientific disciplines. These cases have ranged from instances of

incompetence and sloppy forensic work to outright fraud. See e.g. Michael

R. Bromwich, Final Report of the Independent Investigator for the Houston

Police Department Crime Laboratory and Property Room (June 13, 2007)

(discussing pervasive problems in HPD crime lab, particularly systemic

misapplication and misunderstanding of serology tests); Brian Rogers, Ex-

Crime Lab Analyst Told HPD Colleagues of Wrongdoing, Houston

Chronicle (June 25, 2014) (HPD lab analyst who worked on 51 murder cases

accused of lying, improper procedure, and tampering); Ex parte Coty, 418

S.W.3d 597, 598 (Tex. Crim. App. 2014) (describing misconduct by DPS

crime lab employee in falsifying drug test).

This Court has also acknowledged the great weight jurors place on

scientific evidence (especially from medical doctors), and that jurors tend to

defer to an expert’s credentials rather than content when the scientific

opinions offered are complex:

studies have shown that juror reliance on an expert's credentials is directly proportional to the complexity of the information represented: the more complex the information, the more the jury looks to the background, experience, and status of the expert himself rather than to the content of his testimony. There

5

is also some evidence that jurors value medical expertise higher than other scientific expertise . . . .

Coble v. State, 330 S.W.3d 253, 281 (Tex. Crim. App. 2010). Studies also

show that jurors have grown to expect scientific evidence in criminal cases,

thus adding pressure on prosecutors to present scientific evidence even when

its reliability may be in question. See Hon. Donald E. Shelton et. al., A

Study of Juror Expectations and Demands Concerning Scientific Evidence:

Does the "CSI Effect" Exist?, 9 Vand. J. Ent. & Tech. L. 331, 357 (2006)

(discussing high expectation of jurors for scientific evidence); Simon A.

Cole & Rachel Dioso-Villa, Investigating the "CSI Effect' Effect: Media and

Litigation Crisis in Criminal Law, 61 Stan. L. Rev. 1335, 1351-52 (2009)

(describing survey showing prosecutors requested additional forensic tests

based on the perception that jurors have heightened expectations for forensic

proof).

Despite the importance of scientific evidence to juries and its role in

wrongful convictions, this Court’s Criminal Justice Integrity Unit reported in

2009 that half of the criminal law judges in Texas—the gatekeepers for

reliability— “received zero hours of forensic science training last year, and

many judges requested additional training on the standards for reliability of

scientific evidence.” See Texas Criminal Justice Integrity Unit 2009 Annual

Report of Activities at 6. The same deficiencies were recognized by the

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National Association of Criminal Defense Lawyers in a 2010 report issued

from Austin, Texas which acknowledged that all legal professionals,

including defense lawyers who are tasked with challenging unreliable

scientific evidence, “generally lack the scientific expertise necessary to

comprehend and evaluate forensic evidence in an informed manner.”

Strengthening Forensic Science, NACDL Austin, Texas (2010); see also

NAS Report at 12.

The Supreme Court acknowledged the double-edged character of

scientific evidence which can both illuminate and confuse:

Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it.

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 595, 113 S. Ct. 2786,

2798, 125 L. Ed. 2d 469 (1993). Considering the importance placed on

scientific evidence by juries and the risk that such evidence can be

misleading, it is no wonder that unreliable scientific evidence has lead to

wrongful convictions. A review of the 329 recognized DNA exonerations

shows that unreliable forensic science contributed to 47% of wrongful

convictions.2 Among the 1606 exonerations recognized by the National

2 http://www.innocenceproject.org/causes-wrongful-conviction (last visited 5/28/15)

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Registry of Exonerations, 23% involved false or misleading forensic

science.3

2. Article 11.073 Represents a Broad Legislative Response to the Problem of Unreliable Scientific Evidence.

Judge Cochran’s concurring opinion identifies two cases which led to

the enactment of Article 11.073 by the 83rd Legislature. In Robbins I and

Ex parte Henderson, seven members of this Court agreed that “Texas law

lacked clarity in dealing with instances in which critical scientific evidence

supporting the conviction—either the scientific filed itself or the expert’s

original opinion—had been discredited.” Robbins II at *19. In addition to

the specific calls for reform in the cases dealing with unreliable scientific

evidence identified by Judge Cochran above, members of this Court also

anticipated Legislative action where this Court’s dedication to jury deference

and “hard minded application of standards of review”4 could result in

wrongful convictions. See Watson v. State, 204 S.W.3d 404, 449 (Tex.

Crim. App. 2006) (Cochran, J., dissenting joined by Keller, C.J., and JJ.,

Keasler and Hervey) (advocating for abandonment of factual sufficiency

3 https://www.law.umich.edu/special/exoneration/Pages/ExonerationsContribFactorsByCrime.aspx (last visited 5/28/15). 4 Brooks v. State, 323 S.W.3d 893, 923 (Tex. Crim. App. 2010) (Cochran, J., concurring).

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review and explaining that concerns about manifestly unjust convictions

could be handled through legislative action).5

While our rules of evidence encourage the consideration of relevant

and reliable scientific evidence pursuant to Rule 702, courts have also noted

that judges are not well equipped to correctly evaluate difficult issues of

science. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 599

(1993) (Rehnquist, C.J., and Stevens, J., concurring and dissenting)

(Daubert factors involve consideration of issues “far afield from the

expertise of judges”); Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 318 (7th Cir.

1996) (“it is a daunting task for judges who do not have a scientific

background (and most do not) to decide whether a scientist's testimony is

real science or not”); Kelly v. State, 824 S.W.2d 568, 576 (Tex. Crim. App.

5 The need for a safety valve to remedy invalid scientific evidence in criminal cases is highlighted when contrasted to the greater scrutiny afforded to such evidence in the civil context. Studies have documented that civil courts are generally more rigorous in screening out questionable scientific proof. See David L. Faigman, The Daubert Revolution and the Birth of Modernity: Managing Scientific Evidence in the Age of Science, 46 U.C. Davis L. Rev. 893, 928 (2013) (reviewing research comparing civil and criminal court decisions on admissibility of scientific evidence). This different approach is evident in Texas law as well. For example, the Texas Supreme Court has barred any consideration of unsupported scientific evidence even absent an objection:

[I]f no basis for the opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is no objection. ‘[A] claim will not stand or fall on the mere ipse dixit of a credentialed witness.’ ”

Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010); see also City of Keller v. Wilson, 168 S.W.3d 802, 812- 13 (Tex. 2005) (invalid expert testimony “incompetent” and should be disregarded in sufficiency of the evidence analysis). By contrast, this Court’s review of judgments based on unsupported expert testimony has been more lenient, even when finding the evidence to be insufficient. See, e.g., Winfrey v. State, 323 S.W.3d 875, 885 (Tex. Crim. App. 2010) (declining to examine validity of dog scent lineup absent objection at trial and finding such evidence to raise “strong suspicion of guilt” that, despite its unproven reliability, can support a conviction when corroborated by other evidence).

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1992) (Clinton, J., dissenting) (expressing concern that incorrect decision

admitting unreliable science will result in injustice and that Texas criminal

justice system lacks procedures to meaningfully test scientific evidence). In

recognition of this unique vulnerability in cases involving scientific

evidence, Article 11.073 creates a safety valve for criminal convictions

based on scientific evidence presented at trial that is now undermined by

either advancements in science or additional scientific evidence that

contradicts that relied on by the State.

B. Article 11.073 Applies to Dr. Moore’s Changed Medical Opinion.

Consistent with the two-fold problem of “bad science” and “bad

scientific testimony”6 which has led to wrongful convictions, the lead

section of Article 11.073 identifies two distinct types of evidence that can

form the basis for relief under this statutory new trial remedy:

(1) scientific evidence that was not available to be offered at trial; or

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

Section (a)(1), which focuses on evidence unavailable at trial, encompasses

the “bad science” category. For example, advancements in scientific

technology such as the advent of forensic DNA testing and other more

6 Robbins II at *15 (“it is not surprising to see ‘bad’ science and ‘bad’ scientific testimony in our courtrooms”)

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powerful modern forensic tools developed after a conviction would fall into

this category. This category would also include advances within a scientific

field such as the methods of arson investigation or the understanding of

biomechanics.

Section (a)(2) encompasses a separate category of evidence, scientific

evidence which “contradicts” the scientific evidence relied on by the State at

trial. Tex. Code Crim. Proc. Art. 11.073 § (a)(2). The Legislature’s use of

“or” indicates that the contradicting evidence discussed in section (a)(2)

means something different from that referred to in section (a)(1). Although

the full breadth of section (a)(2) need not be determined in this case, Dr.

Moore’s changed medical opinion clearly falls within it because her current

opinion contradicts, and, so necessarily discredits, the expert opinion she

offered at trial.

Dr. Moore’s changed medical opinion likewise meets the requirement

under section (b)(1)(A) that the scientific evidence was “not ascertainable

through the exercise of reasonable diligence by the convicted person.” At

Mr. Robbins’s 1999 trial, Dr. Moore testified that it was her medical opinion

that Tristen Rivet died from compression asphyxia—a homicide. See

Robbins II at *3. Because Tristen was in Mr. Robbins’s sole care at the

11

time, he was convicted of murder. Id. at *4. In 2007, Dr. Moore

contradicted this opinion to acknowledge that the cause of death was

“undetermined.” See id. *5. This was the first time that Dr. Moore had

expressed her changed opinion, and Mr. Robbins acting with reasonable

diligence could not have ascertained that Dr. Moore would change her

opinion prior to the time that she expressed this opinion. Cf Ex parte

Calderon, 309 S.W.3d 64, 70 (Tex. Crim. App. 2010) (witness recantation

not available through exercise of due diligence where recantation was

unknown to defendant).

This construction of the plain language of the statute is supported by

the legislative history of Article 11.073 in the 83rd Legislature. The need for

a law to address Mr. Robbins’s case was discussed in committee by counsel

for Mr. Robbins as well as the former Montgomery County District Attorney

who handled the Robbins prosecution and initial post-conviction. See

Robbins II at *27 (Keasler, J., dissenting). There was no opposing view

expressed at that hearing or any other legislative forum, despite the presence

of a representative of the Texas District and County Attorneys Association

who registered “on” the bill but did not testify. See Witness List, Senate

Committee on Criminal Justice, Tex. S.B. 344, 83rd Leg. R.S. (March 12,

2013). No representative of Montgomery County voted against the bill,

12

which passed unanimously in the House and with only three “nays” in the

Senate. See S.J. of Tex. 83rd Leg., R.S. 588 (2013); H.J. of Tex. 83rd Leg.,

R.S. 3407-08 (2013).

Any question as whether the 83rd Legislature intended for Article

11.073 to apply to the facts of Mr. Robbins’s case has been resolved by the

84th Legislature’s recent passage of a bill intended to codify this Court’s

decision which is currently on rehearing. HB 3724 was expressly intended

to codify this Court’s November 26, 2014 decision in Mr. Robbins’s case.

The Bill Analysis produced in the Senate makes this unmistakably clear:

AUTHOR'S / SPONSOR'S STATEMENT OF INTENT H.B. 3724 codifies a recent Court of Criminal Appeals decision within the discredited Forensic Science Law that I authored and we passed last session. The decision held that a defendant may have their convictions reexamined if an expert who testified at the defendant's trial later rejects the testimony, casting doubt on the integrity of the conviction.

• This addition is to the current law allowing an individual to challenge their convictions if they are based on debunked or otherwise discredited scientific evidence that was used in their trial. It was passed after an alarming number of wrongful convictions that resulted from "junk science" and "junk scientists."

• A recent case in the Court of Criminal Appeals tested whether the law applies in cases where a scientific expert sincerely thought something was true at the time the expert testified, but the expert's understanding and opinions changed

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after trial based on new knowledge and improvements to the science that had supported the expert’s former opinion.

H.B. 3724 simply codifies the recent court decisions and clarifies that the legislative intent in enacting Article 11.073 included not only discredited science but also the testimony that was based on discredited science.

Senate Research Center, Bill Analysis, Tex. H.B. 3724, 84th Leg. R.S. (May

15, 2015). The Bill Analysis by the House Committee on Criminal

Jurisprudence likewise expresses the original intent of Article 11.073 to

encompass the facts of Mr. Robbins’s case:

BACKGROUND AND PURPOSE

Informed observers note that current law allows for the reexamination of certain cases based on new scientific evidence and requires a court, in finding whether new scientific evidence exists, to consider whether the scientific knowledge or method on which the relevant scientific evidence is based has changed. The observers contend that a recent Texas Court of Criminal Appeals opinion held that a change in the scientific knowledge of a testifying expert would be a basis for habeas relief under the law. C.S.H.B. 3724 seeks to codify this decision.

House Comm. On Crim. Jurisprudence, Bill Analysis, 84th Leg. R.S. (bill

heard on April 22, 2015). With this unambiguous statement of legislative

intent, HB 3724 was passed unanimously in the Senate and with only three

“nay” votes in the House. See S.J. of Tex. 84th Leg., R.S. 1884 (2015); H.J.

of Tex. 84th Leg., R.S. 2984 (2015). All of the elected representatives of

Montgomery County voted in favor of the bill. See id.

14

Considering (1) the plain language of Article 11.073, (2) the

unambiguous statement of the legislative intent in the Senate committee

hearing on SB 344 before the 83rd Legislature, and (3) and the passage of

HB 3724 by the 84th Legislature, there is simply no question that the statute

applies to Dr. Moore’s changed testimony in Mr. Robbins’s case.

C. Article 11.073 Balances the Interests of Finality and Accuracy in Criminal Cases. The Legislature’s decision to provide a remedy in cases involving

both changed science and the changed opinion of a scientist strikes a balance

between the interests in the finality of criminal convictions and the need to

remedy wrongful convictions. The statute applies to a broad category of

scientific evidence, but that scientific evidence has to be admissible. See

Tex. Code Crim. Proc. Article 11.073(b)(1)(B). This admissibility

requirement carries with it an independent gate-keeping inquiry by the trial

court to ensure that any new scientific evidence presented under the law is

reliable and relevant to the case. See Tex. R. Evid. 702. Thus, an expert

can’t simply change her opinion on a whim—there must be a valid scientific

underpinning to the new opinion or other scientific evidence. A changed but

unreliable new opinion from an expert could hardly be the basis for

changing the outcome of a case.

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Furthermore, the statute limits relief to those few cases in which the

new scientific evidence would “probably” change the outcome of the case.

Although this standard is short of the Elizondo “clear and convincing” test

for innocence, evidence establishing that a person would probably not have

been convicted is universally equated with a miscarriage of justice. See

Schlup v. Delo, 513 U.S. 298, 315 (1995) (evidence that defendant probably

would not have been convicted brings case within narrow class of cases

implicating miscarriage of justice); Ex parte Brooks, 219 S.W.3d 396, 400

(Tex. Crim. App. 2007) (same). Accordingly, Article 11.073 will not result

in the reversal of every conviction involving discredited scientific evidence.

The finality of a conviction is only disturbed in the rare instances when

unreliable scientific evidence was “probably” the reason a defendant was

convicted.

Conclusion and Prayer

Advancements in science have, in large part, brought greater

reliability to the criminal justice system both in convicting the guilty and

exonerating the innocent. See Dist. Attorney's Office for Third Judicial Dist.

v. Osborne, 557 U.S. 52, 55 (2009). But experience shows that scientists

can and do get it wrong. The recent passage of HB 3724 by supermajorities

in both the Texas House and Senate confirms the intent that Article 11.073

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encompass a scientist’s changed opinion when (1) the retracted opinion is

reliable and (2) the retracted scientific evidence was the primary evidence of

a person’s guilt, is consistent with the stated legislative intent of Article

11.073. The Innocence Project therefore asks this Court to uphold the intent

of the People of Texas to ensure that only the best available science is used

to convict; and where convictions are found to have been based on

unreliable scientific evidence, courts have the tools necessary to remedy a

miscarriage of justice.

Respectfully submitted,

______________________________

BARRY C. SCHECK NY Bar Number: 1634765

BRYCE BENJET TX Bar Number: 24006829

THE INNOCENCE PROJECT 40 WORTH STREET SUITE. 701 NEW YORK, NEW YORK 10013 (212) 364-5340 (212) 364-5341 FAX

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CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that a true and correct copy of the foregoing Amicus Curiae Brief by the Innocence Project was mailed by Federal Express to the Montgomery County District Attorney’s Office, 207 W. Phillips Flr. 2, Conroe, Texas 77301, and Brian Wice, Attorney for Applicant Neal Hampton Robbins, The Lyric Centre, 440 Louisiana, Suite 900, Houston, Texas 77002-1635, on this the 1st day of June, 2015. This brief was also e-filed pursuant to the applicable rules of the Court of Criminal Appeals.

/s/ Bryce Benjet_________________ BRYCE BENJET

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CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. Proc. 9.4(e)(i)(2), undersigned counsel certifies that this brief complies with the type-volume limitations of Tex. R. App. P. 9.4(e)(i)(2).

1. This brief complies with the type-volume limitation of Tex. R. App. P. 9.4(e)(i)(2) because this brief contains 3,732 words, excluding the parts of the brief exempted by Tex. R. App. P. 9.4(e)(i)(2).

2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) and the type style requirements of Tex. R. App. P. 9.4(e) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word in 14 point Times New Roman.

/s/ Bryce Benjet_________________ BRYCE BENJET

APPENDIX A

Ex Parte Robbins, --- S.W.3d ---- (2014) 2014 WL 6751684

Price, JJ., joined.

2014 WL 6751684

Only the Westlaw citation is currently available. Keller, P.J., filed dissenting opinion in which Hervey, J., joined.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE Meyers, J., filed dissenting opinion.

PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. Keasler, J., filed dissenting opinion.

Court of Criminal Appeals of Texas.

Ex Parte Neal Hampton Robbins, Applicant West Headnotes (5)

NO. WR–73,484–02 | Delivered November 26, 2014 | Rehearing Granted May 13, 2015 [1]

Habeas Corpus

Synopsis Newly discovered evidence Background: After conviction and life sentence for capital murder were affirmed on direct appeal, 88 S.W.3d 256, Medical examiner’s post-trial reconsideration of and initial application for writ of habeas corpus was initial conclusion from autopsy that cause of denied, 2013 WL 6212218, defendant filed second child victim’s death was asphyxia by application for habeas relief, based on new scientific strangulation and that manner of death was evidence that was not available at time of trial. The 410th homicide, following which she concluded that District Court, Montgomery County, recommended the cause and manner of death were “undetermined,” grant of new trial. was new scientific evidence that contradicted scientific evidence relied upon by State at trial which was not available at time of original application, as basis for obtaining successive Holdings: The Court of Criminal Appeals, Womack, J., habeas review. Tex. Crim. Proc. Code Ann. art. held that: 11.073(a)(2). [1]

medical examiner’s revised opinion that cause and Cases that cite this headnote manner of child victim’s death were “undetermined,” was new scientific evidence that contradicted scientific evidence relied upon by State at trial;

[2]

[2]

medical examiner’s revised opinion was new scientific Habeas Corpus evidence based on change of scientific knowledge that was Change in facts or law; new evidence not available at time of original habeas application; and The Court of Criminal Appeals may consider a [3]

defendant would not have been convicted of capital subsequent habeas application only if the current murder if new evidence had been made available at trial, as claims and issues have not been and could not grounds for successive habeas relief. have been presented previously in an original application or in a previously considered application because the factual or legal basis for Writ issued; judgment of conviction and sentence vacated; the claim was unavailable on the date the remanded. applicant filed the previous application.

Johnson, J., filed concurring opinion. Cases that cite this headnote

Cochran, J., filed concurring opinion in which Johnson and © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Ex Parte Robbins, --- S.W.3d ---- (2014) 2014 WL 6751684

been made available at trial, as grounds for habeas relief, setting aside conviction and [3]

Habeas Corpus sentence, and remanding for new trial, where Newly discovered evidence medical examiner’s trial testimony was only evidence presented by State to show that victim’s An applicant seeking habeas relief based on death was homicide. Tex. Crim. Proc. Code Ann. newly available scientific evidence that was not art. 11.073. available at trial must establish that the facts he alleges are at least minimally sufficient to bring Cases that cite this headnote him within the ambit of that legal basis for relief. Tex. Crim. Proc. Code Ann. art. 11.073.

Cases that cite this headnote

ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM MONTGOMERY COUNTY

[4]

Habeas Corpus Attorneys and Law Firms Newly discovered evidence Brian W. Wice, Attorney at Law, Houston, TX, for Medical examiner’s post-trial revision of her Applicant. original conclusion to which she testified at trial William J. Delmore III, Assistant District Attorney, for capital murder that cause of child victim’s Conroe, TX, for the State.

death was asphyxia by strangulation and that manner of death was homicide to state that, while Opinion suspicious, both cause and manner of victim’s death were “undetermined,” which revised Womack, J., delivered the opinion of the Court, in which opinion was based on review of medical evidence Price, Johnson, Cochran, and Alcala, JJ., joined. Johnson, and more experience in field, was new scientific J., filed a concurring opinion. evidence based on change of scientific knowledge that was not available at time of original habeas application, as grounds for *1 The applicant, Neal Hampton Robbins, was convicted obtaining successive habeas review. Tex. Crim. in 1999 of the capital murder of his girlfriend’s Proc. Code Ann. art. 11.073. seventeen-month-old daughter, Tristen Rivet. The State did not seek the death penalty, and upon conviction the Cases that cite this headnote applicant was sentenced to life in prison. We affirmed the judgment and sentence on direct appeal.1

The applicant filed his first application for a writ of habeas [5] corpus in 2011, alleging actual innocence based on new Habeas Corpus evidence and due process claims for the use of false Newly discovered evidence testimony, which we denied.2 Medical examiner’s post-trial revision of her The applicant filed this subsequent application for a writ of original conclusion to which she testified at trial habeas corpus on September 3, 2013, pursuant to article for capital murder that cause of child victim’s 11.073 of the Texas Code of Criminal Procedure. Article death was asphyxia by strangulation and that 11.073 was passed during the 2013 legislative session and manner of death was homicide to state that, while became effective on September 1, 2013. There are no suspicious, both cause and manner of victim’s factual changes in the applicant’s case since the filing of death were “undetermined,” was sufficient to his first application. In both applications he argued he was show that defendant would not have been entitled to a new trial because the medical examiner who convicted of capital murder if such evidence had testified for the prosecution, Dr. Patricia Moore, could no © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

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longer stand by her trial testimony regarding the cause of type of relationship. death. The only difference between the two applications is the enactment of the new law upon which the applicant *2 On the morning of her death, Tristen was suffering now relies. Based on article 11.073, the applicant argues he from a cold but was otherwise in good health. Hope, is entitled to relief because scientific evidence relied on by accompanied by Morris, left the house at approximately the State at trial has been contradicted by relevant 11:30 a.m. to attend appointments and run errands. scientific evidence that was unavailable at trial, and if it Applicant was entrusted with Tristen’s care. Applicant’s had been presented at trial he would not have been parole officer, Tim Hurst, visited Applicant between convicted. 1:26 p.m. until 2:00 p.m. Hurst testified that he observed Tristen walking around and eating animal crackers, and We shall grant the applicant’s request for relief. Tristen asked for some red punch, which Applicant gave her from his own glass. Applicant’s brother arrived for a visit at approximately 1:45 p.m. and remained at the home until about 2:20 p.m.

Background Applicant paged Hope between 3:30 and 4:00 p.m.

When Hope called, Applicant sounded “shaky” and The relevant facts and procedural background have not “excited” and told her to hurry back to the house because changed since the applicant’s first application for habeas he “had to go and had things to do.” When Hope and corpus was denied by this Court in 2011. As we Morris arrived home between 4:00 and 4:30 p.m., summarized previously, the facts as developed at trial and Applicant told them that he had laid Tristen down for a during original habeas proceedings are as follows: nap shortly after they spoke on the telephone. Applicant stated that he had to leave, and an argument ensued with The victim resided with her mother, Barbara Hope, and Hope about Applicant’s frequent absences. Applicant her mother’s boyfriend, Applicant, at the home of and Hope walked to the store a couple of blocks away Applicant’s mother, Bonni Morris. Applicant and Hope and then returned home. During that time, Morris was had a volatile relationship, frequently separating and alone with Tristen. She testified that she was going reuniting. Witnesses suggested that both suffered from through bills and talking on the phone, as could be depression. When seeking group-type counseling, supported by phone records. Applicant told a counselor that he did not know what he would do if things got worse, and he feared he would After Applicant departed, Hope watched a news hurt Hope if they stayed together. broadcast on television. At about 5:40 p.m., Hope checked on Tristen and thought that the child was Testimony indicated that Tristen and Applicant had a sleeping. At 6:00 p.m., Hope returned to Tristen’s room good relationship, but that changed in the months to wake her up. She saw that the baby was lying in her leading to Tristen’s death. Applicant’s personality began bed with a pillowcase covering one eye, part of her nose, to change after he started taking pain medication for and her mouth. When Hope moved the pillowcase, she injuries received in a serious car accident. Then, saw that Tristen’s lips were blue. Upon picking her up, beginning in November 1997, Tristen suffered injuries Hope found that Tristen’s body was cold and that she on three separate occasions while being cared for by was not breathing. Applicant: a bruise under the eye, an injury to her leg or ankle, and finally, a series of bruises across her face. Hope cried for Morris to call 9–1–1 for assistance and Also, testimony suggested that in early 1998, Tristen carried Tristen into the living room. There she held became afraid of Applicant. Hope stated that Tristen Tristen on her lap and tried to breath into her mouth. A “didn’t seem to care too much for [Applicant] anymore” pink fluid gurgled up from Tristen’s mouth and nose, and seemed afraid of him. Tristen’s injuries and change and Hope inserted a finger into Tristen’s throat to in behavior led neighbor Rhonda Bethune and babysitter attempt to dislodge any object stuck in her throat. Hope Helen McDaniel3 to express concern that Applicant was then carried Tristen outside, where she yelled for hurting Tristen. However, the defense presented several someone to assist her and placed the child on a patch of witnesses, including Morris and Applicant’s well-groomed lawn near the front door. Morris and a grandmother, brother, and sister-in-law, who stated that neighbor’s daughter, Pamela Garrison, attempted to Tristen and Applicant had a very loving, father-daughter perform CPR on Tristen. Morris blew into Tristen’s

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mouth while Garrison pushed with very little force upon specifically assistant medical examiner Dr. Patricia the child’s abdomen three or four times, using the palm Moore. Moore noted six or seven contusions on of her hand. Garrison testified that Tristen’s skin felt Tristen’s legs, which were consistent with normal very cold, and she did not hear any air coming out of the childhood injuries. She also observed five irregularly baby. Another neighbor, Jackie Sullivan, who had shaped, purple bruises on Tristen’s back, ranging from previously worked as an emergency medical technician, one-eighth to one-quarter inch in width; bruises on the approached and told Morris and Garrison to stop right side of her neck; and areas of discoloration on her because they were performing CPR too forcefully, given face and left arm. Moore incised the bruises on Tristen’s the size of the child. Sullivan made a statement to the back with a scalpel and found hemorrhages down to the effect that they would kill the child if she was not dead level of deep subcutaneous tissue. When examining already. She observed that Tristen was not breathing, Tristen’s internal organs, Moore discovered petechiae that her body was cold, and that her lips were (small areas of hemorrhage) on the thymus and the bluish-purple, circumstances leading her to believe that lungs, a small hemorrhage on the kidney, a recent Tristen was dead at that time. Still, Sullivan started to hemorrhage between the intracostal muscles of the perform infant CPR with two fingers. eleventh and twelfth ribs on each side, and a hemorrhage of the tonsils. Moore stated that Tristen’s heart appeared An ambulance arrived at 6:08 p.m., and paramedic “pretty good” and the lungs contained “some mucus in Elizabeth Fredregill placed Tristen on a stretcher. After the bronchi,” which probably resulted from a cold. Upon several unsuccessful attempts, a breathing tube was further examination the next day, Moore found two inserted into Tristen’s larynx. Fire department personnel additional bruises behind Tristen’s right ear and another performed CPR and administered epinephrine during bruise on the right side of her neck. the trip to the hospital. Fredregill observed that Tristen was pale and cold to the touch, that her neck was stiff, At trial, Moore, as the State’s expert witness, testified and that there was vomit in her airway, and she formed that the cause of Tristen’s death was asphyxia due to an opinion that Tristen was dead based on her compression of the chest and abdomen and that the observation of fire department personnel performing manner of death was homicide. She explained that the CPR. The first base-line EKG was taken in the presence of petechiae on the back of the thymus and ambulance at 6:16 p.m. lungs indicated an asphyxia-related death. Moore ruled out CPR as the cause of death because the injuries to *3 Tristen arrived at the hospital at 6:36 p.m., and she Tristen’s back were inconsistent with the administration was immediately examined by Dr. John Conner, who of adult CPR and the injury to the kidney was deep determined that Tristen was “asystole” and without down, requiring a lot of force. She also excluded sudden respiration, was cool to the touch, and displayed some infant death syndrome (SIDS) because of the child’s age dependent lividity, all indicating that she “had been dead “and the story doesn’t fit the picture of a SIDS baby for some time.” Tristen was placed on monitors to assess death.” Additionally, Moore stated that Tristen may her condition, but Conner believed that there was no have been dead for at least three hours before her chance of successful resuscitation. A nurse attempted to temperature was taken at the hospital, based upon an determine Tristen’s temperature with a rectal approximate post-mortem cooling rate of 1.5 degrees thermometer, which continued to display its lowest per hour, and that Tristen’s body would not have possible reading of 94 degrees Fahrenheit, thereby sustained bruises as the result of the application of CPR signifying that the child’s temperature was actually that long after her death. lower than the minimum displayed by the digital thermometer. Conner pronounced Tristen dead at 6:53 On cross-examination, Moore testified that she was p.m. He broke the news to Hope, who was distraught assuming that the CPR took place on the floor, so and cried that she did not want to live. Conner testified Applicant asked her to imagine that it took place on a that Applicant’s behavior was unusual in the situation floor with sticks and rocks scattered around and that the because he attempted to fondle Hope, but other adults performing CPR were doing so as if Tristen was a witnesses disputed this testimony. strong adult and were applying heavy force on her chest and abdomen. Moore responded that such circumstances Subsequently, Justice of the Peace Edie Connelly could explain the bruises on the back but not the rib ordered an autopsy that was performed by the Harris injury (although she also acknowledged that if enough County Medical Examiner’s Office (HCMEO), pressure was applied to the abdomen, the kidney and © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4

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ribs could bruise). Moore also asserted that she was not organized activity was represented and not all of the completely excluding other reasonable hypothesis by leads showed it. One reading did show some movement, which Tristen died. Still, it was her opinion that Tristen but she attributed it to the CPR that was in progress, not was asphyxiated, and she believed that beyond a heart activity. Finally, Carl Ulbrich, a physician who reasonable doubt. was working in the emergency room at the same time as Dr. Conner but was not the primary physician on *4 To contravene Moore’s testimony, the defense called Tristen’s case, reviewed the records and testified that the Dr. Robert Bux, the deputy chief medical examiner for EKG readings indicated no electrical activity except for Bexar County, Texas.4 Bux testified that the cause of mild interference. He noted that the up-and-down Tristen’s death could not be determined and that no pattern on one of the EKG charts was consistent with anatomical reason demonstrated during the autopsy CPR. could have led to a specific cause of her death. Relying on a treatise, Bux explained that death from asphyxia by Applicant testified in his defense. He stated that Tristen compression would have resulted in abundant petechiae was affectionate toward him and that on the day of her above the level of compression (including on the death, he did nothing to harm Tristen. In fact, he claimed forehead, cheeks, and eyes) as well as abrasions and that he had never struck her, abused her, disciplined her, bruises around the front of Tristen’s body that would or even raised his voice to her. Yet he admitted causing have occurred during the struggle. But Moore observed the three injuries to Tristen, blaming the incidents on his none of these during the autopsy. Bux also stated that the “carelessness.” When asked about his turbulent occasional petechiae on internal organs observed were a relationship with Hope, Applicant denied that any stress “non-specific finding” and could have resulted from resulted from the fact that Hope came in and out of his other causes. That is, “[e]ven the presence of abundant life, and although he participated in group counseling petechiae is not a hallmark” and was not “specific for with her, he denied being depressed, claiming he asphyxia.” Regarding the time of death, Bux stated that attended merely out of concern for Hope. Applicant pulseless electrical activity on Tristen’s EKG charts further commented that he would overlook a lot of could have occurred 30 to 40 minutes after her death, things because of his love for Tristen. In addition, indicating that Tristen’s death occurred after 5:30 p.m. Applicant was questioned about the testimony of when Applicant was not with the baby. When asked Bethune that in the month following Tristen’s death, about the role of CPR in the injuries, Bux asserted that Applicant took all of the batteries out of Tristen’s toys the bruises on Tristen’s back were consistent with the and then explained to her that “it hurt too much; he administration of CPR while the child was lying on a couldn’t handle the guilt.” Applicant responded that he lawn that was not prepared for that purpose. Similarly, removed the batteries because it hurt him to hear them Bux testified that the rib and kidney injuries could have go off, not due to a feeling of guilt from something that been caused by frontal pressure during CPR, although he had done. he admitted that he had not personally seen a kidney injury due to such occurrence. Bux claimed that bruises During closing arguments, the State emphasized can occur after death, explaining that it is possible for Moore’s testimony in arguing that it was Applicant, and there to be a distribution of blood vessels and then the only Applicant, who could have caused the blood runs out and pools because of gravity. asphyxia-related death of Tristen. For his part, Applicant argued that if “anything, he is guilty of the offense of In its rebuttal case, the State offered evidence to loving a child.” Applicant put forth the SIDS scenario contradict Bux’s EKG testimony. Fredregill described and emphasized that the bruises on Tristen’s body could how the electrodes are attached and the advantages of have been caused by incorrectly performed CPR efforts electrodes over other types of monitors. Kelly Curry, to save her life. He also pointed to the testimony of the Fredregill’s supervisor and the clinical manager for two medical examiners, arguing that Bux’s was the EMS at Montgomery County Hospital District who was more credible opinion. trained in and also taught how to read EKGs, testified about interference and artifacts in EKG readings. She On February 22, 1999, the jury found Applicant guilty explained that the three electrode leads attached to of capital murder, and Applicant was sentenced to life Tristen looked at different directions of the heart and imprisonment. Approximately a month later, Applicant were to be read simultaneously. She dismissed as filed a motion for new trial, arguing that evidence was artifacts any activity on the EKG charts because no legally and factually insufficient to establish that

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Tristen’s death was a homicide, but the trial court denied information that suggested that the bruises could have the motion. resulted from aggressive CPR and other efforts to assist the child.5 She emphasized that it was significant that *5 ... aggressive adult-type CPR by untrained persons was performed on Tristen, a 17–month–old child.

D. Reevaluation of Autopsy Findings E. [Original] Habeas Application and Proceedings In March 2007, an acquaintance of Applicant contacted the HCMEO and asked it to review Moore’s findings On June 4, 2007, Applicant filed his original application regarding the cause of Tristen’s death. The deputy chief for a writ of habeas corpus alleging, “Newly discovered medical examiner for Harris County, Dr. Dwayne Wolf, evidence shows that no rational juror would find undertook a re-evaluation of the autopsy findings. After Applicant guilty beyond a reasonable doubt of the reviewing the testimony adduced during Applicant’s offense for which he was charged and convicted.” About trial, the autopsy report, the EMS and medical records, a month later, Applicant filed a supplemental and the police offense report, Dr. Wolf concluded that application alleging that his “right to a fair trial by a fair Moore’s observations during the autopsy did not support and impartial jury ... was violated because his conviction a finding that the death resulted from asphyxiation by was based on testimony material to the State’s case that compression or from any other specific cause. has now been determined to be false.” Consequently, on May 2, 2007, Wolf amended Tristen’s autopsy report to reflect that both the cause and manner In its original response on June 25, 2007, the State of death was “undetermined.” And so on the following recommended that Applicant be granted a new trial day, Justice of the Peace Edie Connelly formally because his due process rights to a fair trial and impartial reopened the inquest into Tristen’s death. jury were violated. The State claimed that because it relied on Moore’s original opinion in presenting its case, Shortly thereafter, former Harris County Medical which has now been recanted, confidence in the Examiner Joye Carter was asked by the Montgomery outcome has been undermined. Citing Ex parte County District Attorney’s Office to review Moore’s Carmona, 185 S.W.3d 492 (Tex.Crim.App.2006), the autopsy report. Carter had been Moore’s supervisor and State wrote, “While Dr. Moore’s testimony is not had agreed with Moore’s original opinion. In a May 10 perjured testimony, the effect of the change in her letter to the district attorney, she wrote, “Upon my opinion is the same—the jury was led to believe and review of this case I would not concur with the opinion credit facts that were not true.” on the manner of death as a homicide but would reconsider this case as an undetermined manner,” and *6 The same day, Applicant and the State filed agreed “If the Harris County Medical Examiner intends to findings of fact and conclusions of law. But instead of re-rule this case as an undetermined manner of death I signing them, on August 22, 2007, the trial court would agree with that change.” appointed Dr. Thomas Wheeler, the Chairman of the Department of Pathology at Baylor College of Moore, too, was asked by the Montgomery County Medicine, with the task of conducting an independent District Attorney’s Office to review her autopsy report. pathological examination to address the following In a May 13 letter to the district attorney, she stated, issues: (1) What is the manner of Tristen Rivet’s death?

(2) What is the means of Tristen Rivet’s death? (3) Are I believe that there are unanswered questions as to the manner and means of Tristen Rivet’s death able to be why the child died, and I still feel that this is a determined? (4) Does a change in the medical suspicious death of a young child. Given my review examiner’s opinion about the manner and means of of all the material from the case file and having had Tristen Rivet’s death entitle Applicant to a new trial? more experience in the field of forensic pathology, I After reviewing the autopsy file of the victim, trial now feel that an opinion for a cause and manner of testimony, and exhibits, Wheeler concluded in a death of undetermined, undetermined is best for this September 18, 2007, letter to the trial court that the case. cause and manner of Tristen’s death were undetermined.

Wheeler asserted that “[a]lthough the autopsy Moore explained that since her original opinion, she has performed by Dr. Moore was thorough and well had more experience, and she has reviewed additional documented, her conclusion that the death of Tristen

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Rivet was caused by asphyxia secondary to chest on May 6, 2008, that no markings of any kind could be compressions was not justified by the objective facts and identified due to the poor condition of the paper. pathological findings in this case.” He could not rule out suffocation or asphyxiation as the cause of death, but he Judge Connelly amended Tristen’s death certificate on did not see any physical findings that would support any May 13, 2008, to correspond with Norton’s opinion that particular conclusion as to the cause of death. Tristen’s death was caused by asphyxia due to suffocation, rather than asphyxia by compression; the In October 2007, Judge Connelly ordered that homicide finding was not changed. The following day, pathologist Linda Norton conduct an independent Norton executed an affidavit incorporating her forensic examination of the evidence and submit a conference discussion. In its May 27, 2008, written report of her findings and opinion on the cause supplemental response, the State was no longer willing and the manner of Tristen’s death.6 On March 28, 2008, to recommend a grant, but it agreed not to oppose Norton reported the results of her review during a Applicant’s request for a new trial. It wrote that the recorded telephone conference call, in which Judge “cause of death remains asphyxiation, albeit by Connelly and counsel for Applicant and the State suffocation rather than compression, and the manner of participated. Norton stated that it was her opinion that death a homicide as presented by the jury at Applicant’s Tristen’s death was a homicide and that the manner of trial.” On August 6, Wheeler submitted a sworn death was asphyxia by suffocation. She explained that affidavit, repeating what he had said in his September her conclusion was supported by the petechial letter to the trial court, adding that he disagreed with hemorrhages on Tristen’s lungs and thymus, combined Norton’s opinions. That same day, Applicant filed a with the other evidence of trauma, and in the context of memorandum on why Moore’s amended autopsy should the other circumstances of Tristen’s death. In addition, not be found credible. Norton stated that the correct rule of thumb for assessing temperature loss in a child’s body after death is an *7 On August 13, 2008, Applicant, joined by the State, approximate loss of three degrees per hour, depending filed proposed joint findings of fact and conclusions of upon ambient temperature and other environmental law, which recommended that Applicant be granted a facts. Thus, combining that with Tristen’s maximum new trial based on due process grounds and the fact that rectal temperature of 94 degrees at the hospital and the he was denied a “fundamentally fair trial and an accurate descriptions of Tristen’s condition by Sullivan and result.” On August 25, Moore’s sworn affidavit was others, she believed that Tristen’s death occurred filed, incorporating much of her prior letter to the district between 2:30 and 5:00 p.m. Consequently, because the attorney. The next day, Applicant, again joined by the child had been dead for at least an hour before CPR was State, filed another set of proposed findings and attempted, the external bruises observed during the conclusions. Instead of signing it, the trial court ordered autopsy could not have been inflicted during the CPR. that the parties engage in discovery. Moore was deposed Nonetheless, Norton acknowledged that she could not on December 10, 2008; Wheeler on December 19, 2008; conclude beyond a reasonable doubt that Applicant and and Wolf on February 10, 2009. The trial court Applicant alone committed the homicide. appointed John Milutin, an attorney experienced in the deposition of medical experts, to depose these witnesses.

Norton also recommended that authorities investigate Norton was subpoenaed so she, too, could be deposed, reports that Applicant had written something on a dollar but she could not be located. When the trial court bill and placed it in Tristen’s casket at the funeral home granted the State’s motion to depose Norton at the on the date of Tristen’s funeral. Ruth Hope (Barbara location of her choosing, she could not be deposed due Hope’s mother) and Shelby Becker (Barbara Hope’s to medical problems.7 Instead, on December 17, 2009, sister) had executed affidavits indicating that they saw Norton submitted a second affidavit in which she Applicant writing something on a money bill and then confirmed that she was incapable of preparing for or placing it in Tristen’s coffin. On April 4, 2008, Judge participating in a deposition, and she adopted and Connelly signed an order directing that Tristen be ratified under oath the statements and opinions she exhumed for the purpose of retrieving any evidence that expressed during the previous telephone conference, might be found in the casket. Six days later, Tristen’s including that she believed Tristen died from suffocation remains were exhumed and remnants of a piece of paper and that her death was homicide. Based largely on resembling United States currency were recovered from Norton’s opinion, on December 22, the State filed its the casket liner. Document preservation experts reported second supplemental response and recommended that © 2015 Thomson Reuters. No claim to original U.S. Government Works. 7

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relief be denied. Shortly thereafter, Applicant filed an established by evidence that an expert opinion may have objection to Norton’s affidavit, arguing that, given her been correct or it may have been incorrect.” unwillingness to be deposed, the trial court should not The trial court made twenty-two pages of detailed consider her affidavit. findings of fact, much of which is summarized above, and five pages of conclusions of law. The trial court On December 29, 2009, Judge Connelly conducted an recommended that we grant Applicant a new trial evidentiary hearing on Applicant’s motion to reopen the because his due process and due course of law rights inquest into Tristen’s death to allow consideration of were violated, as was his right to an impartial jury. 9 additional expert medical testimony. Applicant also filed a motion to reopen the inquest into Tristen’s death *8 This Court denied the applicant’s original application after her death certificate was amended to show she died for writ of habeas corpus.10 On September 3, 2013, the of suffocation, but this motion was denied because “on applicant filed a subsequent application for writ of habeas the basis of examination and investigation, in the corpus pursuant to article 11.073 of the Texas Code of opinion of this Court, the cause and manner of the death Criminal Procedure. The trial court recommended that of Tristin Skye Rivet, as shown on the amended death relief be granted, and the State objected to its findings and certificate ..., is cause: asphyxia due to suffocation, recommendations. We ordered that the application be filed manner: homicide.” and set for submission.

On January 15, 2010, the State filed its proposed findings of fact and conclusions of law, which recommended that relief be denied. Days later, Applicant filed his proposed findings and conclusions. Subsequent Application for Writ of Habeas Corpus On January 21, the State filed its first supplemental brief [1] [2]

in support of its proposed findings and conclusions. This Court may consider a subsequent application only While not willing to concede that Applicant properly if “the current claims and issues have not been and could raised a due process claim in his supplemental ground not have been presented previously in an original for relief, the State argued that, even if he did raise due application or in a previously considered application filed process, the Court “has not yet held—and it seems under this article because the factual or legal basis for the unlikely that it will ever hold—that the Due Process claim was unavailable on the date the applicant filed the Clause is violated when a witness provides, in good previous application....”11 faith, an opinion that is believed to be true by both the witness and the prosecution at the time of trial, even if As stated previously, no new factual bases for a claim have that opinion is subsequently challenged by other experts emerged since the applicant filed his original application. or reconsidered by the witness who offered it.” The question remains whether the enactment of 11.073 created a new legal basis for a claim.

The next day, on January 22, 2010, the trial court permitted oral argument. Applicant argued that Moore’s Article 11.07 defines what makes a legal claim re-evaluation was newly available evidence and that Ex unavailable: parte Elizondo, 947 S.W.2d 202 (Tex.Crim.App.1996), For purposes of Subsection (a)(1), a requires that the newly available evidence be evaluated legal basis of a claim is unavailable within the four corners of the trial transcript. 8 Further, on or before a date described by Applicant asserted that due process and fairness require Subsection (a)(1) if the legal basis that the jury have the opportunity to re-weigh the was not recognized by and could not evidence. In contrast, the State contended that Applicant have been reasonably formulated could not establish that he was actually innocent because from a final decision of the United the evidence is not newly discovered, the re-evaluation States Supreme Court, a court of was not indisputable, and there was other evidence of appeals of the United States, or a Applicant’s guilt. Regarding the due process claim, the court of appellate jurisdiction of this State argued that Applicant had failed to raise it as a state on or before that date.12 supplemental ground, and it doubted whether there was a legal and factual basis for his due process claim: “It’s Article 11.073 was enacted on September 1, 2013, six hard to believe that a violation of due process is years after the applicant filed his original application. Prior

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to the enactment of article 11.073, newly available relied on by the State at trial: Moore’s testimony. During scientific evidence per se generally was not recognized as the applicant’s trial, the State repeatedly emphasized a basis for habeas corpus relief and could not have been Moore’s testimony that this was homicide by asphyxiation. reasonably formulated from a final decision of this Court or the United States Supreme Court, unless it supported a We hold that article 11.073 applies to this evidence under claim of “actual innocence” or “false testimony.”13 This section (a)(2).16 Court held in the applicant’s first habeas proceeding that his claim did not satisfy the requirements for either actual innocence or false testimony.14

Article 11.073 provides a new legal basis for habeas relief Availability of Scientific Evidence in the small number of cases where the applicant can show by the preponderance of the evidence that he or she would In order to obtain relief, the applicant must include in his not have been convicted if the newly available scientific application specific facts showing the “relevant scientific evidence had been presented at trial. evidence is currently available and was not available at the time of [his] trial because the evidence was not [3]

An applicant also must establish “that the facts he alleges ascertainable through the exercise of reasonable diligence are at least minimally sufficient to bring him within the by the convicted person before the date of or during [his] ambit of that new legal basis for relief.”15 In this case the trial.”17Article 11.073 (d)(1) and (2) provide guidance to applicant has alleged prima facie facts in his application the Court in how to make this determination: sufficient to invoke the new law—there is arguably In making a finding as to whether relevant scientific relevant scientific evidence that contradicts scientific evidence was not ascertainable through the exercise of evidence relied on by the state at trial, and that evidence reasonable diligence on or before a specific date, the was not available at trial because Moore re-evaluated her court shall consider whether the scientific knowledge or opinion after trial. Although similar information was method on which the relevant scientific evidence is presented by a defense expert at trial, Dr. Bux, the based has changed since:

evidence at issue is the State’s evidence regarding cause of death, which has been contradicted. (1) the applicable trial date or dates, for a determination made with respect to an original *9 The applicant has met the requirements for submission application; or of a subsequent application, and we now proceed to consider the merits of this application. (2) the date on which the original application or a previously considered application, as applicable, was filed, for a determination made with respect to a subsequent application.

Article 11.073

Article 11.073 requires the Court to consider “whether the scientific knowledge or method on which the relevant scientific evidence is based has changed.” Scientific The applicant argues he is entitled to relief under article method is defined as “[t]he process of generating 11.073 because Dr. Moore, the medical examiner who hypotheses and testing them through experimentation, performed the autopsy and testified for the State, has publication, and republication.”18 re-evaluated her testimony and opinion and can no longer [4]

stand by her trial testimony that Tristen’s death was a The process used by Moore did not change, and there is homicide. Moore now believes, as stated in her May 13, no argument from either the applicant or the State that 2007, letter to the district attorney, “that an opinion for a methods for analyzing the cause of child death in a case cause and manner of death of undetermined, undetermined like this have changed in the scientific community, as have [sic ] is best for this case.” other areas of science recently considered by this Court.19 The remaining question before this Court is whether the This evidence regarding the cause of death is relevant “scientific knowledge ... on which the relevant scientific scientific evidence that contradicts scientific evidence evidence is based has changed” (emphasis added).

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Moore’s conclusion certainly has changed, but does appropriate validation based on the scientific method. “scientific knowledge” apply to the knowledge of an Moore’s revised opinion on the cause of death satisfies the individual? requirements to be called “scientific knowledge,” and thus falls within the language of article 11.073. Moore’s *10 The United States Supreme Court defined scientific opinion labeling cause of death as “undetermined” was not knowledge when explaining what constitutes admissible available at the time of trial because her scientific “scientific knowledge” testimony from an expert witness. knowledge has changed since the applicable trial date.

The adjective “scientific” implies a grounding in the methods and procedures of science. Similarly, the word The State argues Moore’s re-evaluated opinion was “knowledge” connotes more than subjective belief or available at trial because the same information was unsupported speculation. The term “applies to any body presented by the defense through Dr. Bux. We disagree. of known facts or to any body of ideas inferred from The relevant evidence is the State’s evidence on Tristen’s such facts or accepted as truths on good grounds.” Of cause of death. It has changed. Moore’s re-evaluated course, it would be unreasonable to conclude that the opinion on cause of death contradicts the evidence relied subject of scientific testimony must be “known” to a on by the State at trial and was not available at that time certainty; arguably, there are no certainties in science. because she re-evaluated years after the trial ended. But, in order to qualify as “scientific knowledge,” an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validation—i.e., “good grounds,” based on what is known.20 Admissibility and Probable Outcome

The Supreme Court laid out several factors for determining Both the State and the applicant agree that, if it had been whether something qualifies as scientific knowledge under available at trial, Moore’s opinion regarding the cause of its definition, which are incorporated into the definition of death would be admissible under the Texas Rules of “scientific knowledge” provided in Black’s Law Evidence. Dictionary:

Knowledge that is grounded on *11 [5]Finally, we find on the preponderance of the scientific methods that have been evidence that, had this evidence been presented at trial, the supported by adequate validation. applicant would not have been convicted. Moore’s original Four primary factors are used to trial testimony was the only evidence presented claiming determine whether evidence conclusively that Tristen died as the result of a homicide. amounts to scientific knowledge: The State also emphasized her testimony in its closing (1) whether it has been tested; (2) statement when arguing to the jury that the applicant whether it has been subjected to caused Tristen’s death. It is hard to imagine any reasonable peer review and publication; (3) the jury’s returning a conviction when no one can even say known or potential rate of error; and confidently that a murder has been committed. (4) the degree of acceptance within the scientific community.21

Moore’s opinion at trial on the cause of death was admissible scientific evidence, based on inferences derived Conclusion from the scientific method. Dr. Wheeler, Chairman of the We grant the applicant’s request for relief, set aside the Department of Pathology at Baylor College of Medicine, applicant’s conviction in cause number 98–06–00750–CR, stated in his letter to the trial court that “the autopsy and order that the applicant be remanded to the Sheriff of performed by Dr. Moore was thorough and well Montgomery County to answer the charges against him.

documented,” but her original conclusion was not supported by the autopsy.22

Her new opinion that the cause of death is “undetermined,” which the applicant argues is the “change in scientific Johnson, J., filed a concurring opinion. knowledge,” is also an inference or assertion supported by © 2015 Thomson Reuters. No claim to original U.S. Government Works. 10

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Cochran, J., filed a concurring opinion, in which Price and dummies. Johnson, JJ., joined.

The words of Article 11.073 state that it “applies to Keller, P.J., filed a dissenting opinion, in which Hervey, J., relevant scientific evidence ... that was not available to be joined. offered ... at the convicted person’s trial; or ... contradicts scientific evidence relied on by the state at trial.” Relief Meyers, J., filed a dissenting opinion. may be granted if “relevant scientific evidence is currently available and was not available at the time of ... trial Keasler, J., filed a dissenting opinion. because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person Johnson, J., filed a concurring opinion.

before the date of or during the convicted person’s trial.”

The various positions on statutory interpretation seem to *12 “Evidence” is what is presented at trial in support of agree that the legislative history indicates that the intent of the litigants’ positions. “Scientific evidence” is presented this statute is to provide relief to those who were convicted by scientists, and the content of that evidence depends on on science or scientific methodology that is now known to the knowledge of that particular witness about the science be unsound.

at issue. “Bad science” and “bad scientists” are inseparable. A scientist may not intend to present bad My first observation is that “scientific method” and science, nor must that scientist be a bad scientist in every “scientific methodology” are not the same. “Scientific situation. Linus Pauling won a Nobel Prize in chemistry method” is the observation of some phenomenon in the and would certainly be a good scientific witness if he world, the formulation of a theory-a possible explanation testified about his work in chemistry. However, he would of that phenomenon-and testing of that possible be a bad scientist presenting bad science if he were called explanation to see if the phenomenon is indeed explained as a witness to the unlimited powers of vitamin C.

by that theory. For example, in the 18 th century, inoculation against smallpox used the live smallpox virus Because evidence is what is presented at trial by a witness itself, producing a high risk of contracting the disease and and is therefore limited by the personal knowledge of that dying. Dr. Edward Jenner, among others, observed that witness, logically the statute must be intended to address milk maids who had suffered through cowpox, a relatively the personal knowledge of scientific witnesses. Personal mild disease, did not contract small pox. His theory was knowledge increases over time as one gains new that having had cowpox protected one against smallpox.

knowledge and refines one’s understanding of one’s older He tested his theory by inoculating 24 subjects with pus knowledge. New law graduates may know book law, but from the cowpox blisters on a local milkmaid and then most have not yet learned how to integrate book law with exposing those persons to smallpox. None of his subjects trial tactics. And some skills simply cannot be learned developed smallpox, thus verifying his theory. A quirk of anywhere except in the crucible of practice in the real the scientific method is that, even after the theory has been world. New lawyers are likely to lose trials that a more thoroughly tested and proven to be an accurate explanation experienced lawyer would not, merely because they have of the observed phenomenon, it is still referred to as a not yet developed the interpretive skills of that more theory, as in “the theory of gravity,” even though the experienced lawyer. Or they might choose to try a case that “theory” has become universally accepted as fact.

a more experienced lawyer, after careful consideration of the facts, would choose to settle.

“Scientific methodology,” on the other hand, is the means by which a theory is tested. In Jenner’s cases, the The same is true of physicians. Because of inexperience, a methodology was to scrape pus from a human who had resident may miss a diagnosis that a more experienced active cowpox and using that pus to inoculate other doctor would have made, merely because the older doctor humans, then exposing them to smallpox to confirm that had seen the grouping of apparently unrelated symptoms the inoculation with cowpox provided immunity to before or was knowledgeable about uncommon diseases or smallpox. If the theory being tested is that blood is thicker just knew more about what questions to ask the patient.

than water, the methodology is likely to involve measuring Some practitioners, of law or medicine, may not keep up the viscosity of blood and water and comparing the results.

with the current literature. The result of inexperience or Automobile manufacturers constantly test new theories out-dated knowledge may be testimony that may rightfully about injury prevention and mitigation with crash-test be called bad science, even if not intentionally so, and that © 2015 Thomson Reuters. No claim to original U.S. Government Works. 11

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testimony may persuade a jury to convict when it should knowledge, and thus in scientific testimony from not. individuals, should also be available as bases for re-examination of convictions.

This is just such a case. Testimony indicated that the child’s injuries could have been inflicted intentionally, but I join the opinion of the Court. it also indicated that the injuries could have resulted from improper CPR;1 how much of the general public knows that CPR on infants is done with two fingers and at 100 beats per minute?2 Only Dr. Moore testified at trial that the Cochran, J., filed a concurring opinion in which Price and cause of death was homicide. Experienced pathologists Johnson, JJ., joined. testified that the cause of death could not be determined. At I join the majority opinion. I write separately to the time of the original trial, Dr. Moore had only 18 months respectfully disagree with the State’s contention that the of experience as an associate medical examiner and had plain language and legislative history of Article been cited for defective and improper work. With eight 11.073“demonstrate a legislative intent to provide a more years of experience, she testified that she believed remedy when there is a generally accepted scientific that the cause of the child’s death could not be determined. advance or breakthrough in a discipline of forensic That “relevant scientific evidence ... was not available at science,” rather than a change in the State’s scientific the time of the convicted person’s trial,” and it “was not expert’s opinion.1 I think that providing relief from “bad” ascertainable through the exercise of reasonable diligence scientific testimony and righting the wrong of Robbinswas by the convicted person before the date of or during the “the tipping point” for passing the statute.2 convicted person’s trial;....” The only person who now clings to a firm opinion of homicide is Dr. Norton, who closed her practice, moved from her home, and declined to be deposed for a habeas hearing. A. Our Prior Decision in Robbins was the Poster Child for Enacting Article 11.073.

*13 As has been noted, some examples of “contradicted scientific evidence relied on by the state at trial” include 1. The scientific and legal landscape before passage of arson, infant trauma, bullet-lead analysis, bite marks, some Article 11.073. ballistics tests, blood-spatter patterns, and scent line-ups.

Over the past decade, Texas has been a national leader in Some such evidence has involved misinterpretation based addressing wrongful convictions and recognizing how bad on out-dated knowledge, some are simply junk science that science can lead to bad convictions. During the past ten has never been subjected to any kind of scientific years, all three branches of Texas government have worked investigation. Whether “debunked” or “refined” for to ensure the scientific integrity of Texas criminal increased accuracy, changes in scientific knowledge in convictions and to reassure our citizens that Texas criminal general, and therefore changes in scientific testimony by trials are fundamentally fair and reach accurate results.

individuals, must be acknowledged and addressed. As Judge Cochran noted in her dissent in applicant’s original In 2001, the Texas Legislature enacted Chapter 64, 3 which application for habeas corpus, set up a procedure for post-conviction DNA testing. Then When scientific experts honestly and sincerely thought the Dallas District Attorney’s Conviction Integrity Unit “X” was true at the time they testified, but the science began testing stored DNA from old rape convictions and has changed or the experts’ understanding of the science assisting in the legal exoneration of those defendants has changed and their opinions have changed, what whose DNA did not match that found at the crime scene. 4 cognizance of that change should the criminal justice system take long after a person has been convicted? *14 Those developments, plus the concern over “bad”

arson science,5 led the Legislature to create the Texas Ex parte Robbins, 360 S.W.3d 446, 469 Forensics Commission in 2005 to strengthen the use of (Tex.Crim.App.2011)(Cochran, J., dissenting). “good” science in criminal proceedings and to investigate “allegations of negligence or misconduct” in forensic The legislature has made it clear that advances in DNA sciences.6 The increasing number of Texas exonerations technology may be the basis for re-examining convictions. led to the formation of (1) the Texas Innocence Project in Advances and changes in other forms of scientific 2007 by non-profit organizations working with students,

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and (2) the Texas Criminal Justice Integrity Unit in 2008 science and “bad” scientific testimony in our courtrooms. by the Court of Criminal Appeals to “review the strengths and weaknesses of the Texas criminal justice system” and Meanwhile, Texas has continued its push to ensure that to “bring about meaningful reform.”7 In 2011, the state-of-the-art science would assist in seeing that the Legislature passed Article 38.20 to improve the reliability guilty were convicted and the innocent were not, especially of photographic and live line-up procedures,8 based, in because more than half of all DNA exonerations involved part, on the recommendations of the Criminal Justice unvalidated or improper forensic science.19 But as the Integrity Unit.9 Supreme Court has explained, the problem is not just that a general forensic field may be “bad” science, the problem In 2009, the National Research Council, an arm of the also includes “bad” scientists. National Academy of Sciences, published Strengthening Prosecution experts, of course, can sometimes make Forensic Science in the United States: A Path Forward, its mistakes. Indeed, we have recognized the threat to fair exposé of the shoddy forensics used in criminal criminal trials posed by the potential for incompetent or proceedings.10 This report concluded that, with the fraudulent prosecution forensics experts, noting that exception of DNA, “no forensic method has been ‘[s]erious deficiencies have been found in the forensic rigorously shown to have the capacity to consistently, and evidence used in criminal trials.... One study of cases in with a high degree of certainty, demonstrate a connection which exonerating evidence resulted in the overturning between evidence and a specific individual or source.”11 In of criminal convictions concluded that invalid forensic other words, courts and juries were frequently relying on testimony contributed to the convictions in 60% of the “junk” science in criminal proceedings.12 The NAS report cases.’20 stated that “[n]ew doubts about the accuracy of some forensic science practices have intensified with the The DNA exonerations have shown that faulty growing numbers of exonerations resulting from DNA forensic-science testimony may be due to either (1) analysis (and the concomitant realization that guilty parties insufficiently reliable forensic-science disciplines, such as sometimes walk free).”13 toolmark and firearm evidence, bullet-lead analysis, analysis of hair or fibers, analysis of paint or explosives *15 One of the report’s chapters dealt with concerns about evidence, forensic odontology, and bloodstain analysis;21 medical examiners and coroners. It noted numerous or (2) insufficiently reliable expert testimony about an deficiencies in the system14 and concluded, “It is clear that otherwise reliable forensic-science discipline.22 This death investigations in the United States rely on a second group may include incompetent experts, scientific patchwork of coroners and medical examiners and that charlatans, and experts who intentionally withheld these vary greatly in the budgets, staff, equipment, and scientific evidence, but an empirical study of the DNA training available to them, and in the quality of services exoneration cases shows that the majority of unreliable they provide.”15 Part of the problem noted in the NAS expert testimony falls into one of six categories: Report was that there is very little forensic pathology • Non–Probative evidence presented as probative;23 research, especially research conducted in collaboration *16 • Exculpatory evidence discounted;24 with universities and medical schools.16 This led to an unhealthy reliance on law enforcement and prosecution • Inaccurate frequency or statistic presented;25¿ policies and procedures rather than the best medical • Statistic provided without empirical support;26 practices. Medical examiners, like other forensic experts, should not become the “handmaiden” of the legal system • Non-numerical statements provided without with “no significant uses beyond law enforcement.”17 empirical support;27 and • Conclusion that evidence originated from In 1989, just as DNA testing arrived in criminal cases, one defendant.28 prominent scientist noted, “At present, forensic science is virtually unregulated-with the paradoxical result that In general, the problem with these experts was one of clinical laboratories must meet higher standards to be “over-claiming” or scientific puffery. allowed to diagnose strep throat than forensic labs must meet to put a defendant on death row.”18 Twenty-five years *17 As the Supreme Court has noted, what the government later, our forensic laboratories and scientists have not calls “neutral scientific testing” is not always as neutral or changed much. Because they are not subject to significant scientific as the government suggests.29 “Forensic evidence oversight or accreditation, it is not surprising to see “bad” is not uniquely immune from the risk of manipulation.... A

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forensic analyst responding to a request from a law because “the science surrounding arson investigations has enforcement official may feel pressure—or have an changed dramatically in recent years” and “a technique incentive—to alter the evidence in a manner favorable to used by the FBI to match the chemical signature of bullets the prosecution.”30 has been discredited.” Thus, “[d]efendants who were wrongly convicted using these and any debunked science In sum, the forensic-science problems that have led to deserve a way to raise their claim before a court.” 48 The wrongful convictions include both “bad” science and bill’s emphasis was based entirely upon general changes or “bad” (although perhaps sincere and well-intentioned) advances in forensic sciences-bad science, not bad scientists.31 scientists.

Although Daubert,32Kelly,33 and Nenno,34 have brought *19 In the next legislative session, Senator Whitmire again judicial gatekeeping and oversight to some of the introduced his bill to enact a new Article 11.073.49 During a underlying forensic-science disciplines, courts do not House Committee on Criminal Jurisprudence hearing on typically examine the specific opinions and conclusions the companion bill, HB 220, witnesses testified that that testifying experts reach or whether their inferences are molecular evaluation of paint chips, blood spatter supported by their data.35 There is no screening of the testimony, arson, “dog bark cases,” and “satanic ritual expert’s case-specific inferences and opinions before the abuse of children” might all be areas of debunked scientific jury hears them. Yet it is precisely while the expert testifies expertise subject to possible relief under the proposed bill. that “the rubber meets the road,” and the jury hears claims Once again, the onus was on bad forensic-science about the purported scientific significance of the evidence disciplines, not specific bad scientific testimony. Once in the particular case.36 again, the bill did not pass.

This Court has expressed its concerns about “junk” science in such cases as Jordan v. State,37 and Tillman v. State38dealing with the unreliability of eyewitness 2. Tipping point: the two events that led to the passage of identifications and the psychological factors that cause Article 11.073. inaccurate identifications;39 in the Winfrey40 dog-scent line-up cases; in the context of psychologists testifying to a Two important developments occurred after the legislative capital defendant’s future dangerousness based on session ended in May of 2011. First, we denied applicant unreliable methods;41 in the admission of polygraph tests;42 relief on his original habeas corpus claim, which was based and in the use of comparative bullet-lead analysis.43 We on the medical examiner’s change of opinion from have also recognized that sometimes the science is good, Tristen’s death being “homicide” to her death being but the individual scientific testimony is “bad.”44 “undetermined.”50 The legislative session ended on May 30, and we delivered our 5–4 opinion denying applicant *18 By 2009, the Texas Legislature, at the urging of the relief on June 29. I wrote a dissenting opinion, lamenting Innocence Project of Texas, began reacting to the problems that “[o]ur criminal justice system does not currently have of prior convictions based on bad scientific evidence. any legal doctrine, much less a constitutional doctrine, into Senator John Whitmire sponsored Senate Bill 1976, a bill which this situation falls comfortably.”51 I suggested that (after amendments) that is remarkably similar to the changes needed to be made to accommodate the situation current Article 11.073 statute.45 Although that bill was left in such cases: pending in the House at the end of the session, 46 the bill Given the current legitimate analysis stated that Article 11.073 concerns about the scientific would authorize courts to grant reliability of forensic science used relief on writs of habeas corpus that, in American courtrooms, I think subject to criteria in the bill, raised that the criminal justice system relevant scientific evidence that was needs some jurisprudential not available at the time of a trial or mechanism to deal with cases in that discredited scientific evidence which a prior conviction was based relied on by the prosecution at a upon scientific evidence that has trial.47 subsequently been found to be unreliable, in whole or in a specific The Bill Analysis also noted that this statute was needed case.52 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 14

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manner of death, without which it The second development was our grant of relief in Ex parte would not have obtained a Henderson,53 under circumstances that were very similar to conviction. The Texas Court of those in applicant’s original habeas case.54 Just eighteen Criminal Appeals voted against months after denying relief in applicant’s case when the granting a new trial, with the medical examiner changed her opinion from “homicide” to majority finding no path to habeas “undetermined,” we granted Cathy Lynn Henderson relief relief under current law. The on her claim when the medical examiner changed his question was raised as to how the opinion from “homicide” to “undetermined.” In that case, criminal justice system should the dissent justly criticized the majority for failing to address scenarios in which the articulate a clear legal basis for granting a new trial. 55 The scientific experts sincerely thought three dissenters in Henderson echoed the four different something was true at the time they dissenters in Robbins in agreeing that current Texas law testified, but the science and the lacked clarity in dealing with instances in which critical experts’ understanding and opinions scientific evidence supporting the conviction-either the had changed.59 scientific field itself or the expert’s original opinion-had been discredited. It cannot be doubted that the Legislature had this very case in mind when it debated and enacted what is now Article 11.073. And, during the legislative session, Senator Whitmire told the Texas Tribune that “several recent Court 3. The 2013 Legislative Enactment of Article 11.073. of Criminal Appeals decisions may make [SB 344] more likely to pass.”60 The Robbins and Henderson cases raised *20 The Robbins and Henderson decisions were the “a novel and difficult issue for the criminal-justice judicial landscape in which Senator Whitmire system”: introduced—“once more unto the breach, dear friends, When scientific experts honestly once more”56—his same habeas corpus bill to establish a and sincerely thought ‘X’ was true legal mechanism to address claims of “false and at the time they testified, but the discredited forensic testimony”57 in 2013. The third time science has changed or the experts’ was a charm. And part of its charm may be attributable to understanding of the science has (1) applicant’s post-conviction lawyer testifying to the changed and their opinions have Senate Criminal Justice Committee about the 2011 changed, what cognizance of that Robbinsdecision, and (2) testimony by the original District change should the criminal justice Attorney who had prosecuted applicant and who, after Dr. system take long after a person has Moore changed her opinion concerning Tristen’s cause of been convicted?61 death, agreed with the defense and the trial judge that applicant was entitled to a new trial.58 The Bill Analysis to In Robbins, this Court chose finality over accuracy; in the 2013 bill, SB 344, emphasized this Court’s decisions Henderson we did the opposite, and in 2013, the Texas and referenced applicant’s case: Legislature also chose accuracy over finality by enacting Recent case law and judicial Article 11.073. opinion[s] have identified weaknesses in the current habeas corpus statute, noting issues that include the absence of statutory B. The term “scientific knowledge” in Article 11.073 grounds upon which to grant relief, includes both general scientific advances and specific the speed of changing science that scientific testimony. serves as the foundation of a conviction, and technical testimony As noted above, wrongful convictions have been based on that may change with scientific both a “bad” forensic-science discipline, e.g., bullet-lead discovery. In one case, recanted analysis, and “bad” scientific testimony within a good testimony by a medical examiner forensic discipline. As Justice Scalia has stated, “[f]orensic established the basis of the state’s evidence is not uniquely immune from the risk of case with respect to the cause and manipulation,”62 or incompetence, or innocent errors, or

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cognitive bias. All of these problems are flaws relating to reliability of general fields of forensic science, but “bad” scientific testimony that may exist within a good unconcerned about the reliability of a forensic scientist’s forensic discipline. specific testimony. Regardless of whether a conviction is based on an unreliable field of science or unreliable *21 This case involves “bad” scientific testimony based on scientific testimony, the result is the same: an unreliable insufficient experience.63 The trial and habeas judge verdict that cannot stand the test of time. It is built upon the explicitly found that Dr. Moore shifting sands of “junk” science or a “junk” scientist, and it is the purpose of Article 11.073 to provide a statutory was not competent at the time of mechanism for relief and a retrial based upon “good” trial to offer objective and science and “good” scientific testimony. pathologically sound opinions as to cause and manner of death in this *22 With these additional comments, I join the majority case. Her level of inexperience at opinion. the time of trial and her bias at that time toward the state are now evident. Moore’s admissions that near the time of trial she was cited Keller, P.J., filed a dissenting opinion in which Hervey, J., for defective and improper work joined. and was evaluated as being biased in favor of the prosecution,64 as well The legislature passed Article 11.073 to allow a defendant as Dr. Carter’s statements to obtain habeas relief on the basis of new scientific concerning the turbulence in the ME evidence.1 In a nutshell, the question before us is whether office in 1998, the concern about the statute contemplates granting relief on the basis of (1) a Moore being perceived as a witness change in the science, or (2) a change in the opinion held for one particular side, and that (at by a particular expert in the science. Judge Keasler’s that time) Moore was making the position is that the scientific evidence is new only if there transition to the neutral position of a has been a change in the relevant body of scientific forensic pathologist cast grave knowledge or in the accepted method by which a particular doubt on Moore’s opinions at trial scientific inquiry is conducted. The Court’s position is that and the reasons she gave them. This the change can be the expert’s own testimony, even if that is newly discovered evidence that change in testimony is based merely on the expert could not have been previously becoming more educated in the relevant field of study. I discovered by applicant. agree with Judge Keasler that the statute contemplates granting relief only on the basis of a change in the science.

Dr. Moore’s later re-evaluation of her opinion-putting aside advocacy for one party and seeking more information Subsection (b) of the statute creates a claim for relief on the to reach a more accurate result-is the hallmark of “good” basis of new scientific evidence.2 To obtain relief under scientific methodology: Subsection (b), the applicant must show, among other Scientists continually observe, test, things, that “relevant scientific evidence is currently and modify the body of knowledge. available and was not available at the time of the convicted Rather than claiming absolute truth, person’s trial because the evidence was not ascertainable science approaches truth either through the exercise of reasonable diligence by the through breakthrough discoveries or convicted person before the date of or during the convicted incrementally, by testing theories person’s trial.”3 In Subsection (d), the legislature defines repeatedly.65 what it means to say that scientific evidence was not ascertainable through the exercise of reasonable diligence:

It is not surprising, then, that the Texas Legislature would authorize this court to review convictions based upon an (d) In making a finding as to whether relevant scientific expert’s “scientific knowledge” that the expert has since evidence was not ascertainable through the exercise of repudiated or contradicted based on her further testing, reasonable diligence on or before a specific date, the review, and experience. Indeed, what would not make court shall consider whether the scientific knowledge or sense is for the Legislature to be concerned about the method on which the relevant scientific evidence is

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based has changed since: of the legislature and, although they may never suspend the right, the legislature may enact “laws effecting the (1) the applicable trial date or dates, for a determination implementation of the right to writ of habeas corpus.” made with respect to an original application; or TEX. CONST. art. I, § 12; Ex parte Davis, 947 S.W.2d (2) the date on which the original application or a 216, 219 (Tex.Crim.App.1996). However, the way we previously considered application, as applicable, was have traditionally treated any writs under Chapter 11 is to filed, for a determination made with respect to a measure the facts of the application against constitutional subsequent application.4 provisions to determine whether the facts have offended either the United States or Texas constitutions. Over the I agree with Judge Keasler that the phrase “the scientific years, based upon this method, we have built a body of law knowledge or method on which the relevant scientific that sets the standards by which we analyze each type of evidence is based” refers to general science, not an expert’s writ and establishes the specific criteria each applicant particular knowledge or method of doing things. That is the must meet in order for relief to be granted. In every case we natural understanding of the words in the sentence, and have decided, we have relied on those standards and Judge Keasler explains in detail why the Court’s contrary criteria to determine whether the facts in the applicant’s construction of that phrase is untenable. So, to satisfy case have offended constitutional provisions, and thereby Subsection (b)’s requirement that “the evidence was not warrant relief. ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the *24 In the present case, Applicant was convicted of capital convicted person’s trial,” the applicant must show that the murder based in part on the testimony of medical examiner body of scientific knowledge or the accepted methodology Dr. Patricia Moore, who testified that the victim’s death has changed since the trial. was a homicide caused by asphyxia due to compression of the chest and abdomen. Moore, however, due to her *23 While I fully agree with the first two sections of Judge additional years of experience, no longer stands by her Keasler’s opinion, I would analyze the issue in the third testimony and now believes that the child’s cause and section differently. That section argues that applicant is manner of death cannot be determined. In 2011, Applicant barred from filing this application because the science has sought his first writ of habeas corpus under Texas Code of not changed since his prior application. It is true that, in Criminal Procedure art. 11.07, alleging actual innocence order to take advantage of Subsection (c) of Article 11.073, and that his right to a fair trial was violated because he was an applicant who files a subsequent application must show convicted based on false testimony. Ex parte Robbins, 360 that the body of scientific knowledge or the accepted S.W.3d 446, 458, 459 (Tex.Crim.App.2011); methodology has changed since his prior habeas seeTEX.CODE CRIM. PROC. art. 11.07. We ultimately application. Subsection (c) allows a subsequent application denied his application because Moore’s reevalution simply when a change in science occurs after the filing of the prior stated that the manner and cause of death was application.5 But Article 11.073 did not exist when “undetermined,” not that Applicant could not have caused applicant filed his original application, so Subsection (b) of the victim’s death. We held that this reevaluation did not that article qualifies as a new legal basis under Article meet the requisite showing for actual innocence and did 11.07, § 4(a)(1) and (b).6 Consequently, applicant’s claim not prove Moore’s trial testimony to be false. Id. at is authorized by Article 11.071, § 5. 458–59, 460–63.

Nevertheless, in order for applicant to obtain relief, his In 2013, the Texas Legislature decided to develop a brand claim must qualify under Article 11.073, Subsection (b). new avenue for habeas relief based on developing nature of To so qualify, applicant must show that the science has science and passed article 11.073 of the Texas Code of changed since his trial. Because he has not done so, his Criminal Procedure. In propagating this provision, claim does not qualify, and this application should be however, the legislature set out the criteria that make an dismissed.7 applicant eligible for relief, but it did not set forth any standard by which to judge an application. That is to say that there is no set constitutional provision against which we are to measure particular facts to determine whether to Meyers, J., filed a dissenting opinion. grant relief. Every writ this court has dealt with since Chapter 11 of the Texas Code of Criminal Procedure is Chapter 11 has been in effect has been based on analyzing devoted to writs of habeas corpus. The chapter is a creature whether constitutional provisions have been offended.

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That is the way we have always analyzed and should left unsaid, the Court appears to finds section (d) always analyze applications for writ of habeas corpus. unambiguous and attempts to define “scientific method” Obviously my colleagues are not offended by the through a dictionary definition. Dictionary definitions are a legislature’s intrusion on our authority, but I find the fine way to define terms because they are ordinarily a passing of article 11.073 to be a clear attempt at a power reliable and readily available source for a term’s plain and grab and believe their intent was to tell us how we should ordinary meaning.3 But the Court’s use of the Black’s Law rule on these types of matters. But if the legislature wants Dictionary definition of scientific method leads to an to establish non-constitutional means for relief, it needs to absurd result that the Legislature could not have intended, arrange for the appropriate agency to handle it, such as the and from my reading of the statute, did not intend. Board of Pardons and Paroles. In our court, we judge relief dependant upon our constitutions, and article 11.073 does *25 To hold that “scientific method,” as used in the statute, not provide for relief based upon any constitutional refers to the universally employed “process of generating criteria. Because I do not believe our court is the hypotheses and testing them through experimentation, appropriate avenue for relief and Applicant’s present publication, and republication” undermines the statute’s application does not allege any new facts or rulings on clear intent that the object of the change actually be subject constitutional law, I would deny relief. Therefore, I to change. Section (d) requires a change in either the respectfully dissent. scientific knowledge or method: “whether the scientific knowledge or method on which the relevant scientific evidence is based has changed....” The scientific method generally—“the principles and procedure for the systemic Keasler, J., filed a dissenting opinion. pursuit of knowledge”4 that instill the necessary rigor of We filed and set Neal Robbins’s writ application to valid discovery—is itself unchanging. Science inevitably consider how Texas Code of Criminal Procedure Article changes; the process by which that change occurs does not. 11.073 applies to the facts of his case. The case presents an Under this definition, the Court frustrates the legislative issue of statutory construction defined by established intent and the purpose of the clear statutory scheme by guidelines to an admittedly awkward statute. However, the requiring an inherently static concept to change before Court applies precedent questionably and reaches an relief may be given. This is clearly not what the Legislature incorrect result. The Court interprets the terms “scientific intended. The Court’s definition of the term drains it of any method” and “scientific knowledge” in a manner that substantive meaning and renders it a useless term, an reaches an absurd result and relies upon a United Stated interpretative result we historically are loathe to reach.5 Supreme Court case that contradicts legislative intent. When section (d) is read as a whole, the more accurate Article 11.073’s legislative history suggests that its aim is definition of scientific method (and the more consistent to provide an avenue of relief for those convicted on with the apparent legislative intent) is the scientific science or scientific methodology subsequently found to be methodology used in a particular area of scientific study. I unsound, not an individual expert’s changed testimony do agree with the Court’s conclusion that there is no when the underlying science or methodology of that evidence to suggest that the methods for analyzing the opinion remains valid. The Court’s opinion also overlooks cause of child death have changed in the scientific a potential substantive and procedural obstacle for community. In other words, the accepted science and Robbins’s application, the resolution of which is necessary methodology have not changed. to grant him relief. For these reasons, I dissent.

Scientific Knowledge

Scientific Method

The Court next sets upon determining whether Dr.

In construing a statute, we limit our analysis to the plain Moore’s new opinion qualifies as “scientific knowledge ... meaning of the text, unless the language is ambiguous or on which the relevant scientific evidence is based has the plain meaning leads to absurd results that the changed.” The question posed by the Court is, “Moore’s Legislature could not have possibly intended.1 When we conclusion certainly has changed, but does ‘scientific are called upon to go beyond the plain meaning of the text, knowledge’ apply to the knowledge of an individual?” 6 It we may consider various extratextual factors.2 Although finds that it does, but it is unclear what path the Court has

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taken on our established statutory-interpretation roadmap: for purposes of this article refers to the collective holding that the term is unambiguous and the common knowledge within a field of study, not an individual’s understanding and usage ought to apply, or holding that the opinion. Judge Cochran’s concurrence too looks to the term is ambiguous and turning to case law, as an statute’s legislative history, but its conclusion is not extratexual source, to define the term. Either way, I find supported by that history. the analysis flawed in several respects and disagree with the Court’s result. In 2009, Senator Whitmire first introduced a bill that was substantively identical to the language found in Article The Court finds instructive the United States Supreme 11.073.10 The bill contained the phrase in question—“the Court’s definition of “scientific knowledge” in its Daubert court shall consider whether the scientific knowledge or opinion.7 The majority then summarily concludes that Dr. method on which the relevant scientific evidence is based Moore’s new opinion “satisfies the requirements to be has changed.” The Senate Research Center’s Bill Analysis called ‘scientific knowledge’ ” because her new opinion is stated Senator Whitmire’s intent was to “prohibit[ ] a “an inference or assertion supported by appropriate convicting court from denying relief on an authorized validation based on the scientific method.”8 application based solely on the applicant’s plea, confession, or admission .... [and] authorize[ ] a court to The Supreme Court’s opinion has no value in defining any grant relief on the basis of relevant scientific evidence not of Article 11.073’ s terms. Not only is there no explicit or available at the time of the convicted person’s trial.”11 implicit reference to Daubert in Article 11.073’s language, Daubert itself does not stand for the proposition that expert The House Research Organization’s Bill Analysis echoed testimony is necessarily “scientific knowledge” in and of the same sentiment. However, it went further and itself. The Court’s Daubert quotation ends too soon; it expressed the view of the supporters of that bill, who should continue as it does in that opinion: “In short, the believed that the statute was necessary because requirement that an expert’s testimony pertain to ‘scientific “defendants who were wrongfully convicted using these knowledge’ establishes a standard of evidentiary and any debunked science deserve a way to raise their reliability.” On a more fundamental level, the majority claim before the court[,]” specifically citing changes in the presumes the answer of the question it seeks to underlying science of arson investigation and matching resolve—whether this term refers to an individual’s chemical signatures of bullets.12 To the extent that it is personal knowledge or the collective knowledge of the relevant, even the bill’s supporters believed that the larger scientific community. Comparing Dr. Moore’s “scientific knowledge or method” addressed a broader, individual opinion to what the Supreme Court stated was fundamental change in the underlying science. I agree with “scientific knowledge” and finding it satisfied merely Judge Cochran that the bill’s emphasis was on “bad assumes that scientific knowledge means an individual science.”13 opinion.

After the 2009 bill failed to pass, Senator Whitmire filed Applying Daubert ‘s definition of scientific knowledge the same bill again in 2011,14 but no testimony nor may speak to whether Dr. Moore’s new opinion would be committee action was taken on it. Action was taken, admissible under the Texas Rules of Evidence at a trial on however, on Representative Pete Gallego’s identical the date of Robbins’s application—a finding a court must companion bill in the House.15 In taking testimony before make under section (b)(2)—but it does nothing to define the House Criminal Justice Committee, Representative the statutory phrase in section (d). The inclusion of section Gallego laid out his bill stating that the legislation’s intent (b)(2)’s requirement that the relevant scientific evidence be is to address science as it moves forward and to “keep up admissible counsels against defining scientific knowledge with the times.”16 In his discussion with other committee in this manner. We presume that the Legislature intended members, Representative Gallego specifically identified each part of a statute to be given effect.9 Not only has the the advancement of arson science and blood-spatter Court strayed from our statutory-interpretation analysis and explained that this legislation would give the presumptions, its analysis gets us no closer to a definition. court the ability to look at new science.17 There was no discussion from either the committee members or *26 I would expressly find the term ambiguous because the witnesses supporting the bill that the design of the term’s common understanding and usage offers little legislation was to grant relief based on the change of an guidance or limitations. Based on Article 11.073’s expert’s opinion absent any significant change in the legislative history, I would hold that scientific knowledge underlying science or accepted methodology. Again, I © 2015 Thomson Reuters. No claim to original U.S. Government Works. 19

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agree with Judge Cochran that the bills’ emphasis was still conclusion that the Legislature intended the statute to on “bad science, not bad scientists.”18 apply to a changed individual’s opinion.

*27 In 2013, Senator Whitmire once more introduced the Unfortunately, in the Senate, the lack of debate and bill (in addition to Representative Sylvester Turner’s discussion among the committee members, probing identical companion bill) that ultimately created what is questions directed at the testifying witnesses, and any floor now Article 11.073.19 However, the previous four years debate substantially hinders our ability to glean real, produced little change to the bill’s text, and Article 11.073 definitive insight on the Legislature’s intent. Judge contains the same substantive provisions as the first bill Cochran’s concurrence relies in significant measure on the filed in 2009. At the urging of the Harris County District bill’s supporters’ opinions. Reviewing witness testimony Attorney’s Office, there were only two changes from the can, in some instances, serve as a useful source in 2011 version: (1) changing “discredits” to “contradicts”; deciphering legislative intent. Experts in a particular field, and (2) changing “reasonably probable” to the more or area of the law, can assist committee members in airing familiar “upon a preponderance of the evidence” issues of concern, providing guidance, and suggesting standard.20 The Senate Research Center’s Bill Analysis changes to a pending bill’s language. It is not unusual for a summarized the bill’s intent as “amend[ing] the Code of committee to take testimony from many witnesses Criminal Procedure relating to applications for writs of testifying for or against a particular bill offering a number habeas corpus relief based on relevant scientific evidence of opinions and concerns. But there is no inherent link of false and discredited forensic testimony.... Recent between what a witness says about a bill and what the examples of such evidence include dog-scent lineups, Legislature intends in passing it. I am less inclined to find misinterpreted indicators of arson, and infant trauma.”21 such testimony helpful from a statutory-interpretation standpoint when the absence of committee members’

Judge Cochran’s concurring opinion quotes from the substantive questions offers no insight on collective “Supporters Say” section of the House Research legislative concerns and the testimony has no appreciable Organization’s Bill Analysis of S.B. 344: “Recent case law effect on the bill’s language. and judicial opinion[s] have identified weaknesses in the current habeas corpus statute, noting issues that include the *28 The most compelling sources available regarding absence of statutory grounds upon which to grant relief, the Article 11.073’s enactment are the authors’ own speed of changing science that serves as the foundation of a statements and the committee members’ questions and conviction, and technical testimony that may change with statements when discussing the bills. It carries much more scientific discovery.”22 Without naming the case weight than the witnesses’ opinions expressed in their specifically, the Bill Analysis clearly references Robbins testimony. In a committee hearing, Senator Whitmire I23 by describing a case involving a medical examiner’s began by stating that S.B. 344 “will amend the Code of recantation of her trial testimony and this Court’s denial of Criminal Procedure relating to procedures for applications relief. for writs of habeas corpus based on relevant scientific evidence of false and contradicted forensic testimony Several witnesses testified before the Senate Criminal utilized in trial to convict an individual.” He continued: Jurisprudence Committee in support of the bill. Judge “Scientific evidence, such as DNA, was not always a factor Cochran’s concurrence points out two: Robbins’s counsel in determining guilt or innocence. Today, scientific on his original writ application and current counsel, and the evidence has been the sole determinant of restoring liberty former District Attorney who prosecuted Robbins and to an innocent person. The writ of habeas corpus is a agreed with granting him relief in Robbins I. Robbins’s remedy to be used when any person is restrained of their counsel was the only witness who directly opined that the liberty. The Texas Department of Criminal Justice houses statute would apply to a change in an individual expert’s almost 152,000 inmates, and unfortunately some were opinion. It is also notable that counsel did not reference wrongly convicted.”24 With the exception of the number of Robbins I. Whatever the effect of committee testimony inmates, the second part of Senator Whitmire’s statement regarding what a witness believes the bill does and does was a verbatim restatement of how the Senate Research not do has on a proper legislative-intent analysis, it is Center’s Bill Analysis described his intent in proposing undoubtedly at its weakest when the testimony we are S.B.1976, the original bill he filed in 2009. The Senator’s asked to consider is from an interested party’s own comments do not indicate that he held the same concerns representative. Not surprisingly, it is unsatisfying to rely that Judge Cochran ascribes to him. on Robbins’s counsel’s own testimony to support the © 2015 Thomson Reuters. No claim to original U.S. Government Works. 20

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In support of H.B. 967, an identical companion bill to S.B. dog-scent line-ups—and permit relief in future cases 344, Representative Turner was more detailed in his contesting convictions based on antiquated methodology explanation of the bill’s intended purpose. He began by and science. This motivation resulted in the passage of a stating that when an individual is “convicted based on junk bill that emphasized changing methodology and science, science or critical forensic testimony that is disproved by not an individual’s singular opinion. later scientific advancements, the courts cannot presently agree whether or not the existing law provides a basis for *29 From the supporters’ opinions, Judge Cochran relief.”25 As examples of disproved science, he specifically concludes that, “It cannot be doubted that the Legislature identified discredited dog scent line-ups, misinterpreted had this very case in mind when it debated and enacted indicators of arson, and mistaken assumptions about infant what is now Article 11.073.”28 There was no public debate trauma. After Representative Turner’s introduction of the in the true sense, and the conclusion that the bill’s passage bill, there was an exchange between Representatives was a result of this Court’s previous cases is rank Turner and Hughes in which Representative Hughes speculation. But if the Legislature was spurred into action expressed his understanding that the admission of the by the bill supporters’ opinions and Judge Cochran’s faulty science may not have been error at trial, but the bill dissenting opinion in Robbins I and concurring opinion in addresses the scenario when “better technology comes Ex parte Henderson,29 why did the Legislature fail to along.”26 The hearing also contained poignant questioning change the bill’s four-year-old text—which pre-dated both of testifying witness Jeff Blackburn of the Innocence Robbins I and Henderson—to specifically provide a clear Project of Texas. Representative Carter sought his insight “jurisprudential mechanism”30 to address the issue we face on what section (d)’s “ascertainable through the exercise of today? reasonable diligence” language means and how it would practically apply. Blackburn responded that it would not If Article 11.073 was intended to be a response to Robbins open the flood gates and burden the courts, that it would I, it is not very responsive. If we accept the argument that “kill a lot of fake claims,” and “ensure[s] that this law the Legislature was trying to change the result in Robbins I, would only apply to new science.”27 As an example, he it would have understood the change involved was a cited the “huge changes” in arson science, where before, in subsequent change in the expert’s trial testimony, not a his view, it was not even a science. From Representative change in her field of study. It is reasonable to expect a Turner’s express intent and the comments and questions legislative response to an opinion of this Court based on a from the committee members and witnesses alike, it is particular set of facts to come with equally particular clear that, while this particular bill was left pending in provisions providing an avenue for relief. Explained in committee, the proposed legislation targeted past scientific more detail below, it is uncertain that the statute even evidence undermined by subsequent advances in the avails Robbins of relief based on the timing of the alleged particular field. change in scientific knowledge or method in relation to his previously considered application. What is more, if the Judge Cochran’s belief that S.B. 344 aimed to tackle “bad intent of Article 11.073 was to redress a perceived wrong scientific testimony” is contradicted by both Senator in Robbins I or more broadly grant relief based on an Whitmire and Representative Turner’s statements, the expert’s changed testimony without a change in the bill’s unchanged language for the past four years, and her underlying science, it is also reasonable to expect the bill’s own opinion that the 2009 and 2011 bills’ emphasis was on author to say so in laying out the bill in the committee “bad science.” I find unconvincing Judge Cochran’s hearing. Neither Senator Whitmire nor Representative declaration that the Legislature’s intent and the bill’s Turner mentioned any of these alleged intentions. Instead, emphasis shifted from “bad science” to now include “bad both authors expressed the concern Senator Whitmire scientist testimony” without a corresponding change in the harbored in 2009—“bad science.” bill’s language. We can glean something about the Legislature’s motivation in the language previously proposed and ultimately passed. If the Legislature intended to enable a court to grant relief on changed expert testimony alone, it could have easily said that. Instead, the Potential Implications of Robbins’s Original Writ legislative history suggests the Legislature’s motivation Application was to provide a clear path to relief from convictions based on methodology and science that were already Aside from the definition of “scientific knowledge or discredited—advancements in arson detection and method,” the statute’s text poses greater uncertainty in the

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statute’s application and possibly grave consequences for denied June 29, 2011. He filed the present application on Robbins’s current application. The majority concludes September 3, 2013. Under our current jurisprudence, the “Moore’s opinion labeling cause of death as present application would be considered a subsequent ‘undetermined’ was not available at the time of trial application. To find that the relevant scientific evidence because her scientific knowledge has changed since the was not ascertainable through the exercise of reasonable applicable trial date.”31 But this conclusion does not diligence, a court would have to find that the change in consider section (d) in its entirety. For the reader’s benefit, scientific knowledge or method (however that term may be I reproduce section (d): defined) on which the relevant scientific evidence is based has changed after the date he filed his original (d) In making a finding as to whether relevant scientific application.32 Even if we accept that Dr. Moore’s changed evidence was not ascertainable through the exercise of individual opinion meets the definition of scientific reasonable diligence on or before a specific date, the knowledge or method, it appears that such a change would court shall consider whether the scientific knowledge or not satisfy section (d) because it occurred after Robbins’s method on which the relevant scientific evidence is trial and before Robbins’s original application, not after. based has changed since: And because a finding on “relevant scientific evidence that was not ascertainable through the exercise of reasonable (1) the applicable trial date or dates, for a diligence” is necessary to both the jurisdictional issue to determination made with respect to an original address the merits of a subsequent application under application; or section (c) and to grant relief under section (b)(2), it is an issue that the Court must answer before granting relief. The (2) the date on which the original application or a very presence of this issue questions the Court’s holding previously considered application, as applicable, was that Robbins has alleged sufficient facts to bring him filed, for a determination made with respect to a within the ambit of Article 11.073.33 subsequent application.

The statute provides that, to be eligible for relief on an original writ application, the scientific knowledge or method on which the relevant scientific evidence is based Conclusion must have changed since trial. However, when a court is considering a previously considered application (or any *30 Because I find the Court’s statutory interpretation subsequent application), the change must occur after the flawed and question its omission of any discussion of the last application was filed. potentially fatal substantive and procedural issues for Robbins’s application, I dissent.

Robbins’s original writ application was filed on June 4, 2007, in which he claimed that Dr. Moore’s testimony changed on or about May 13, 2007. This application was

Footnotes 1 Robbins v. State, 88 S.W.3d 256 (Tex.Cr.App.2002).

2 Ex parte Robbins, 360 S.W.3d 446 (Tex.Cr.App.2011), cert. denied,––– U.S. ––––, 132 S.Ct. 2374, 182 L.Ed.2d 1016 (2012).

3 McDaniel testified that she called CPS regarding Tristen’s injuries, but the agency did not follow up on the case. She also claimed that she left town because she was so scared of Applicant.

4 Bux agreed that SIDS does not apply to this case. He also noted that Tristen did not die from poisoning, as per the toxicology report.

5 Although Moore claims that she was previously unaware that “ ‘aggressive’ adult type CPR was performed by persons untrained in CPR (infant) on this 17 month child” and that “CPR was performed on a manicured lawn,” she was cross-examined about such circumstances at trial. Similarly, she asserted that she has learned since her original opinion

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that “a finger was placed in the child’s mouth to possibly clear the airway and that back blows were done on the child prior to EMS arrival,” but these facts were available to Moore, as they were facts obtained during the investigation into Tristen’s death and were presented at trial.

6 Norton was paid $22,907.50 from Montgomery County general funds, the district attorney’s forfeiture account, and funds budgeted to the sheriff’s cold case investigation squad.

7 Norton’s daughter informed the State that Norton’s office administrator and close personal friend had died of an apparent self-inflicted gunshot wound at the residence she shared with Norton. Subsequently, Norton suffered from an unspecified health problem that required a “leave of absence” from her medical practice. When the court ordered that the parties take the deposition at a location of Norton’s choosing, Norton had closed her office and vacated her home, so she could not be located by the investigator who sought to serve her with a copy of the court order. Norton then informed counsel by telephone that she was under a doctor’s care and could not currently be medically cleared to participate in a deposition.

8 Applicant stated that by “false evidence,” he meant evidence that is “interchangeable with discredited, inaccurate, incorrect, unvalid, unfounded, whatever term of art this Court chooses to use.” He further noted that Moore’s change of opinion was not a recantation but instead a reevaluation, so it deserved more deference.

9 Robbins, 360 S.W.3d at 448–57.

10 Robbins, 360 S.W.3d at 463.

11 TEX.CODE CRIM. PRO. 11.07, § 4(a)(1).

12 TEX.CODE CRIM. PRO. 11.07, § 4(b).

13 SeeEx parte Binder, 660 S.W.2d 103, 106 (Tex.Cr.App.1983) ( “the mere raising of a claim of newly discovered evidence is, standing alone, not a fit subject for the exercise of state or federal habeas corpus powers”). See alsoEx parte Elizondo, 947 S.W.2d 202, 205 (Tex.Cr.App.1996) (articulating the standard for a bare claim of actual innocence in post-conviction habeas proceedings); Ex parte Ghahremani, 332 S.W.3d 470, 478 (Tex.Cr.App.2011) (false testimony can constitute a violation of due process whether used by the State knowingly or unknowingly when there is a “reasonable likelihood” that the false testimony affected the outcome).

14 Robbins, 360 S.W.3d at 460, 463.

15 Ex Parte Oranday–Garcia, 410 S.W.3d 865, 867 (Tex.Cr.App.2013) (expanding the requirement that a subsequent writ application must allege facts sufficient to make out a prima facie case for relief under the new law the applicant is attempting to invoke to avoid dismissal under Section 4, art. 11.07).

16 “This article applies to relevant scientific evidence that: ... (2) contradicts scientific evidence relied on by the state at trial.”

17 Article 11.073(b)(1).

18 BLACK’S LAW DICTIONARY 1547 (10th ed.2014).

19 See, e.g.,Ex parte Henderson, 384 S.W.3d 833, 833–34 (Tex.Cr.App.2012) (remanding for a new trial where new developments in the science of biomechanics led the medical examiner who testified at trial to testify at the evidentiary hearing that he now believed “there is no way to determine with a reasonable degree of medical certainty whether [his] injuries resulted from an intentional act of abuse or an accidental fall”).

20 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

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21 BLACK’S LAW DICTIONARY 1004 (10th ed.2014).

22 Seesupra p. ––––.

1 Q. Now, I’ll give you another situation. An E.M.T. comes up to the location where the adults are trying to do CPR and they are putting a lot of pressure on that kid and blowing a lot harder than they should, and she says, “If she’s not already dead, you’re going to kill her; stop that,” and proceeded to show them the proper way. Would you say that some of that could have led to injuries to the child, adults putting their full weight down and trying to revive that child?

A. You should see it more anteriorly than posteriorly. Q. Pardon? A. You should see it more the front to the back, the injuries. Q. If you’ve got your palms on the front and you’ve got little rocks and sticks on the back, you’ll see it on the back, you’ll see it on the back, won’t you? A. Yes. You’d see bruises on the back. Q. But you wouldn’t necessarily see them on the front if they’re pushing with their palms, would you? A. No. Q. And they could be misfiring and hitting down in the area of the eleventh and twelfth ribs and cause that sort of damage without any noticeable trauma from looking at the skin, couldn’t they? A. If they’re pushing down lower, yes. Robbins v. State, 88 S.W.3d 256, 258 (Tex.Crim.App.2002).

2 “Give 30 gentle chest compressions at the rate of at least 100 per minute. Use two or three fingers in the center of the chest just below the nipples. Press down approximately one-third the depth of the chest (about 1 and a half inches).” http:// depts.washington.edu/learncpr/index.html (University of Washington)

“Place 2 fingers on the breastbone-just below the nipples. Make sure not to press at the very end of the breastbone. Keep your other hand on the infant’s forehead, keeping the head tilted back. Press down on the infant’s chest so that it compresses about 1/3 to 1/2 the depth of the chest. Give 30 chest compressions. Each time, let the chest rise completely. These compressions should be FAST and hard with no pausing. Count the 30 compressions quickly: ‘1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,1, off.’ ” http:// www.nlm.nih.gov/medlineplus/ency/article/000011.htm (National Institutes of Health)

1 State’s Brief at 11–12.

2 See Jani Jo Maselli, Junk Science and the New Habeas Law, 51 HOUS. LAWYER 16, 16 (Feb.2014) (“The tipping point in the passage of the statute was most likely the procedurally-complex case of Neal Hampton Robbins.”).

3 TEX.CODE CRIM. PROC. arts. 64.01–64.05.

4 See, e.g.,Ex parte Wallis, No. AP–75586, 2007 WL 57969, at *1 (Tex.Crim.App. Jan. 10, 2007) (not designated for publication); Ex parte Smith, No. AP–75573, 2006 WL 3691244, at *1 (Tex.Crim.App. Dec. 13, 2006) (not designated for publication); Ex parte Henton, No. AP–75344, 2006 WL 362331, at *1 (Tex.Crim.App. Feb. 15, 2006) (not designated for publication) (based on exculpatory DNA test results, granting habeas relief to Dallas inmate who had been wrongly convicted of sexual assault).

5 Arson science came to the public’s attention after the execution of Cameron Todd Willingham and the concern that he may have been convicted of the capital murder of his three children based on outmoded arson theories and techniques. See Hon. Juan Hinojosa & Lynn Garcia, Response,Improving Forensic Science Through State Oversight: The Texas Model, 91 TEX. L.REV.SEE ALSO 19, 32 (2012) (noting that “the recommendations generated in the final report of the Willingham case have positioned Texas as a leader in improving the quality and reliability of fire and arson investigation. The discipline of arson investigation has undergone significant transformation over the last two decades as experts have learned more about the way fire behaves. This phenomenon has affected arson investigators in every state. However, no other state is taking such proactive measures as Texas.”); see alsoPeter A. Chickris & Mykal J. Fox, Present Danger: Preventing Wrongful Convictions by Resolving Critical Issues Within Texas’s Criminal Justice System, 52 S. TEX.

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L.REV. 365, 405 (2011) (recounting the facts leading to the conviction and execution of Willingham-as well as the subsequent exoneration of Ernest Willis-who was convicted on the basis of “faulty” arson science).

6 Texas Forensic Science Commission, About Us, http:// www.fsc.texas.gov/about.

7 Texas Court of Criminal Appeals, Texas Criminal Justice Integrity Unit, http://www.txcourts.gov/cca/texas-criminal-justice-integrity-unit.aspx.

8 TEX.CODE CRIM. PROC. art. 38.20 (“Photograph and Live Lineup Identification Procedures”).

9 Texas Criminal Justice Integrity Unit, 2007 Annual Report of Activity, http://www.cca.courts.state.tx.us/tcjiu/reports/TCJIU–2009–report.pdf at 7 (“The TCJIU encourages law enforcement entities to follow the lead of Richardson, Dallas, and other jurisdictions that have voluntarily reformed their eyewitness identification procedures. The TCJIU is collaborating with other members of the criminal justice system to develop legislation that will address this issue statewide.”).

10 NATIONAL RESEARCH COUNCIL, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD (National Academies Press 2009) (“NAS Report”).

11 Id. at 7.

12 According to the NAS Report, the situation is “different in civil cases. Plaintiffs and defendants, equally, are more likely to have access to expert witnesses in civil cases, while prosecutors usually have an advantage over most defendants in offering expert testimony in criminal cases. And, ironically the appellate courts appear to be more willing to second-guess trial court judgments on the admissibility of purported scientific evidence in civil cases than in criminal cases.” Id. at 11.

13 Id. at 37.

14 These deficiencies included, among others, • “inadequate expertise to investigate and medically assess decedents;” • “inadequate technical infrastructure (laboratory support);” • “inadequate training of personnel in the forensic science disciplines;” • “lack of best practices and information standards;” and • “lack of quality measures and control[.]” Id. at 250–51.

15 Id. at 250.

16 Id. at 261–62.

17 Id. at 52.

18 Eric S. Lander, DNA Fingerprinting on Trial, 339 Nature 501, 505 (1989).

19 Melendez–Diaz v. Massachusetts, 557 U.S. 305, 319, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (citing Garrett & Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1, 14 (2009)).

20 Hinton v. Alabama, ––– U.S. ––––, 134 S.Ct. 1081, 1090, 188 L.Ed.2d 1 (2014) (citation omitted).

21 See generally The NAS Report, supra note 10, at 127–83 (setting out and describing various forensic-science disciplines whose reliability has not been systematically established). The problem with most of these fields, according to the report,

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is that they are based on observation, experience, and reasoning without an underlying scientific theory, experiments designed to test the uncertainties and reliability of the method, or sufficient data that are collected and analyzed scientifically. Id. at 128.

22 See Margaret A. Berger, The Impact of DNA Exonerations on the Criminal Justice System, 34 J.L. MED. & ETHICS 320, 322 (2006) (noting investigations of forensic science “mistakes due to the incompetence or fraud of particular analysts,” some of which “have gone on for years,” concluding that “these alarming reports about the erroneous results issuing from crime laboratories reflect pervasive problems with regard to the hiring, training, supervision, and review of personnel”); see alsoPaul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs, 86 N.C. L.REV. 163, 165–69 (2007) (describing news reports of the Houston Police Department Crime Lab scandal and other forensic-evidence scandals and insufficient oversight efforts in various jurisdictions; “[s]ome of the crime lab failures involved incompetence and sloppy procedures, while others entailed fraud, but the extent of the derelictions-the number of episodes and the duration of some of the abuses, covering decades in several instances-precludes dismissal of the controversy as the errant work of only a ‘few bad apples’ ”).

23 Garrett & Neufeld, supra note 19, at 16–17 (this category includes the inaccurate use of population data, suggesting that the rarity of finding “X” is much greater than it is; for example, an expert witness might testify that the rapist was blond, this defendant is blond and only an infinitesimal percentage of the population is blond, therefore the defendant probably is the rapist).

24 Id. at 18 (for example, the expert suggests that when blood found at the scene does not match that of the defendant, it must not have been left there during the crime itself).

25 Id. (for example, the expert inadvertently divides the frequency of finding “X” in half, suggesting that his finding has more significance than it actually does).

26 Id. (for example, the expert just “makes up” a statistical probability, such as the likelihood of this hair coming from someone other than the defendant is 1 in 10,000).

27 Id. at 19 (for example, using such terms as “highly likely,” “very probably,” “consistent with,” when there was no empirical data to support any such conclusion).

28 Id. at 20 (for example, an expert states that the bitemark on the victim was made by the defendant when there is no empirical data to support such a finding).

29 Melendez–Diaz v. Massachusetts, 557 U.S. 305, 318, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

30 Id.

31 If the science is valid and reliable, but the scientist is not up to the task at hand, the problem is with his testimony, not with the science itself. See Simon Cole, Where the Rubber Meets the Road: Thinking About Expert Evidence as Expert Testimony, 52 VILL. L.REV.. 803, 819–24 (2007) (“Judges assume that their work is done once they have ruled proffered evidence admissible or inadmissible” instead of assessing whether the expert’s testimony fits the task at hand).

32 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

33 Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992).

34 Nenno v. State, 970 S.W.2d 549 (Tex.Crim.App.1998).

35 Cole, supra note 31, at 819–24.

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36 Id.

37 928 S.W.2d 550 (Tex.Crim.App.1996) (discussing the importance of assessing the reliability of scientific evidence and how trial judges must act as gatekeepers to weed out “junk” science; concluding that the scientific testimony of a psychologist on the reliability of eyewitness identification is relevant and may be admissible).

38 354 S.W.3d 425, 435–36 (Tex.Crim.App.2011) (holding that psychologist’s testimony on the reliability of eyewitness testimony was both relevant and reliable, and thus should have been admitted); see alsoState v. Esparza, 413 S.W.3d 81, 94 (Tex.Crim.App.2013) (Hervey, J., concurring) (expressing concern that defendants may be convicted on the basis of “junk” science if trial judges do not have the authority to sua sponte conduct a gatekeeping hearing into the scientific reliability of offered evidence; “The real losers of this decision will be criminal defendants convicted on “junk” science; the residents of the convicting county; the people that expended time, effort, and money at the original trial; and the State of Texas.”).

39 According to the Innocence Project, “[e]yewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in 72% of convictions overturned through DNA testing.” Innocence Project, Eyewitness Misidentification, http:// www.innocenceproject.org/understand/Eyewitness–Misidentification.php. According to one law review article, 82% of the first 38 Texas convictions that DNA exonerated were based on erroneous eyewitness identification. Chrickras & Fox, supra note 5, at 369.

40 MeganWinfrey v. State, 393 S.W.3d 763 (Tex.Crim.App.2013) (evidence that dogs alerted to defendant’s scent and weak corroborating evidence legally insufficient to support capital-murder conviction); RichardWinfrey v. State, 323 S.W.3d 875 (Tex.Crim.App.2010) (same).

41 Coble v. State, 330 S.W.3d 253, 270–80 (Tex.Crim.App.2010) (forensic psychiatrist’s testimony concerning defendant’s future dangerousness was not sufficiently reliable to be admissible).

42 Leonard v. State, 385 S.W.3d 570 (Tex.Crim.App.2012) (reversing probation revocation based on therapist’s testimony that defendant failed to “show no deception” on five polygraph tests).

43 Gonzales v. State, No. PD–1661–09, 2010 WL 711783 (Tex.Crim.App. Feb. 24, 2010) (not designated for publication)

(Cochran, J., concurring).

44 See, e.g.,Ex parte Coty, 432 S.W.3d 341, 343 (Tex.Crim.App.2014) (holding that a defendant may prove a due-process violation caused by the malfeasance of a forensic laboratory technician if he establishes an inference of falsity and proves that the “false” evidence was material to his conviction).

45 That bill, introduced and then amended during the 81 st regular session, read as follows:

Art.11.073 PROCEDURES RELATED TO CERTAIN SCIENTIFIC EVIDENCE.

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

(1) was not available to be offered by the convicted person at the convicted person’s trial; or (2) discredits scientific evidence relied on by the state at trial. (b)A A court may grant a convicted person relief on an application for a writ of habeas corpus if the convicted person files an application, in the manner provided by Article 11.07,11.071, or 11.072, containing sufficient specific facts indicating that:

(1)A relevant scientific evidence is 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; (2) the scientific evidence would be admissible under the Texas Rules of Evidence at a trial held on the date of the application; and (3)A the court finds that, had the scientific evidence been presented at trial, it is reasonably probable that the person would not have been convicted. (c)A For purposes of Section 4(a)(1), Article 11.07, Section 5(a)(1), Article 11.071, and Section 9(a), Article 11.072, a claim or issue could not have been presented previously in an original application or in a previously considered application if the claim or issue is based on relevant scientific evidence that was not ascertainable through the

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exercise of reasonable diligence by the convicted person on or before the date on which the original application or a previously considered application, as applicable, was filed. (d)A In determining whether relevant scientific evidence was not ascertainable through the exercise of reasonable diligence on or before a specific date, the court shall consider whether the scientific knowledge or method on which the relevant scientific evidence is based has changed since:

(1)A the applicable trial date or dates, for a determination made with respect to an original application; or (2)A the date on which the original application or a previously considered application, as applicable, was filed, for a determination made with respect to a subsequent application.

46 The Legislature did, however enact House Bill No. 498, which created the Timothy Cole Advisory Panel on Wrongful Convictions. Part of that panel’s legislative mandate was to investigate “the effects of state law on wrongful convictions, as determined based on state statutes regarding ... writs of habeas corpus based on relevant scientific evidence.” Tex. H.B. 498, 2009 Tex. Gen. Laws 1256, 81st Leg. R.S. (2009).

47 House Research Organization, Bill Analysis, Tex. S.B.1976, 81st Leg. R.S. (2009).

48 Id. at 3. Testimony in the Senate Criminal Justice Committee also mentioned problems with serology evidence and firearms. Scott Henson testified before the House Committee on Criminal Jurisprudence and explained why the proposed statute dealt with all types of forensic science, rather than any specific field:

We don’t want to have to come back and ask y’all to pass a new law for, or a new chapter 65 for bullet lead analysis, and chapter 66 for arson, and chapter 67 for whatever the next thing is. And so what this [bill] does is create a mechanism to evaluate discredited scientific evidence without it being specific to one type of forensics. SB 1976, House Committee on Criminal Jurisprudence, May 6, 2009.

49 The bill was substantively the same as that introduced in 2009, but there were minor differences in the division of the subsections.

50 Ex parte Robbins, 360 S.W.3d 446 (Tex.Crim.App.2011).

51 Id. at 470 (Cochran, J., dissenting). The problem was not that the science of determining the cause of death had changed, but that the medical examiner who had done the autopsy and originally determined that Tristen’s death was a homicide had, after many more years of experience, reviewing additional scientific materials and the trial testimony, changed her opinion and agreed with four other pathologists-Dr. Bux, Dr. Carter, Dr. Wolf, and Dr. Wheeler-who had concluded that they could not scientifically determine the cause of Tristen’s death. Id. at 468. The legal problem is that the verdict was no longer reliable.

The result in this case is not “patently inaccurate.” Yet its accuracy is clearly open to dispute. How should the habeas case be resolved when the prior verdict might have seemed accurate at the time, but everyone later recognizes that it might not have been accurate because it was based upon scientific expertise that has been rejected-either by the scientific community or the original scientist herself? Id. at 470–71. I had concluded that, since there was no statute that addressed the problem, courts should “fall back upon the wisdom and experience of the habeas judge-the ‘Johnny–on–the–Spot’ factfinder to whom we will defer whenever the record supports his essential factual findings.” Id. at 472. In this case, the trial judge had recommended granting relief and giving applicant a new trial. Id. at 473–76. A majority of the Court did not agree with the trial judge.

52 Id. at 471 (footnote omitted).

53 Ex parte Henderson, 384 S.W.3d 833 (Tex.Crim.App.2012).

54 In Henderson, a majority of this Court granted relief in a short per curiam opinion, while Judge Price wrote a concurring opinion; I wrote a concurring opinion joined by Judges Womack, Johnson, and Alcala; Judge Alcala wrote a concurring opinion; Judge Keasler wrote a dissenting opinion joined by Presiding Judge Keller and Judge Hervey; and Judge Hervey wrote a dissenting opinion joined by Presiding Judge Keller and Judge Keasler. Id.

Cathy Lynn Henderson was convicted of the capital murder of the child for whom she babysat. At trial, the medical examiner had testified that the defensive theory that the child’s fatal head injury was from an accidental fall was “false” and “impossible,” but at the habeas hearing he testified that, based on new biomechanical studies, he could not © 2015 Thomson Reuters. No claim to original U.S. Government Works. 28

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determine whether the child’s injuries were caused by an accidental or intentional act. Id. at 833–34. The only factual difference between the Henderson case and applicant’s is that, in the former, the medical examiner changed his opinion based on advances in the scientific field of biomechanics, while in the latter, the medical examiner changed her opinion based upon her eight additional years of experience in the field, reviewing additional materials, and consulting with other pathologists.

55 Id. at 852 (Keasler, J., dissenting); id. at 859 (Hervey, J., dissenting) (“Something is missing here. While the Court states that it accepts the trial court’s recommendation granting relief, it does so without providing any legal basis for that ruling, and I cannot find a ground upon which relief should be granted. And to justify its decision, the Court makes a quantum leap from ‘advances in science’ to granting relief, which presents a whole new dilemma for the criminal justice system and this case in particular.”).

56 WILLIAM SHAKESPEARE, HENRY V, act 3, sc. I, line 1.

57 House Research Organization, Bill Analysis, Tex. S.B. 344, 83rd Leg. R.S. at 2 (2013).

58 See State’s Brief at 27–29 (summarizing the testimony at the March 12, 2013 meeting of the Senate Criminal Justice Committee).

59 Bill Analysis, supra note 57, at 2–3 (“Supporters Say”).

60 Maurice Chammah, Bill Addresses Changing Science in Criminal Appeals,The Texas Tribune, Feb. 4, 2013, available at http:// www.texastribune.org/2013/02/04/criminal-justice-advocates-renew-call-flawed-scien/.

61 Robbins, 360 S.W.3d at 469 (Cochran, J., dissenting).

62 Melendez–Diaz v. Massachusetts, 557 U.S. 305, 318, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

63 This is not the only case in which Dr. Moore’s conclusions had been questioned during the early years of her medical-examiner practice. She was the medical examiner in the Brandy Dell Briggs case and declared that the death of Ms. Briggs’s infant son was a homicide. Ex parte Briggs, 187 S.W.3d 458, 463 (Tex.Crim.App.2005). Ms. Briggs originally pled guilty to injury to a child, but later filed a writ application alleging ineffective assistance of counsel for failing to retain an expert to read and interpret the child’s medical records. After other more experienced pathologists and doctors investigated and determined that the infant had suffered a natural death from septicemia originating with an undiagnosed urinary tract infection, Dr. Moore admitted that “another opinion from an outside source would be of utmost importance.... Someone with more experience (performed several autopsies on pediatric cases for years) and more expertise (in neuropathology and/or pediatric pathology or pediatrics) than I could help resolve the issues involved in this case.” Id. at 463 n. 9. We noted in that case that “[t]he original pathologist is no longer with the Medical Examiner’s Office. Applicant introduced numerous official Harris County Medical Examiner’s Office ‘conduct counseling’ reports in the writ hearing concerning the purported deficient performance in various cases by the original pathologist.” Id.

In a parental-rights-termination case, Dr. Moore also declared that a child’s death was a “homicide due to complications from blunt force trauma to the abdomen, even though there were no bruises to her abdomen.” In re J.L., 127 S.W.3d 911, 915 (Tex.App.-Corpus Christi 2004), rev’d163 S.W.3d 79 (Tex.2005). The court of appeals reversed the termination of the mother’s parental rights based on expert testimony that contradicted Dr. Moore’s and had been given in the father’s criminal prosecution. Id. at 918. The Texas Supreme Court reversed the court of appeals because that court had improperly taken judicial notice of the expert testimony in a different, criminal proceeding. 163 S.W.3d at 88–89. Based on the testimony admitted in the mother’s civil case, the evidence was legally sufficient to support the termination of rights to the mother’s other child. Id. Dr. Moore and her “homicide” cause-of-death opinions were questioned in other cases as well. Andrew Tilghman, Several Autopsies by Former Examiner Reviewed,HOUS. CHRON. July 22, 2004, http:// chron.com/news/houston–texas/article/Several–autopsies–by–former–examiner–reviewed–1520093.php.

64 The NAS Report notes that “cognitive bias” is a common source of errors in scientific testimony. It explains that [s]uch cognitive biases are not the result of character flaws; instead, they are common features of decisionmaking,

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and they cannot be willed away. A familiar example is how the common desire to please others (or avoid conflict) can skew one’s judgment if co-workers or supervisors suggest that they are hoping for, or have reached, a particular outcome. NAS Report, supra note 10, at 122.

65 Id. at 112. The report explained the self-correcting nature of science which has had to develop means of revisiting provisional results and revealing errors before they are widely used. The processes of peer review, publication, collegial interactions (e.g., sharing at conferences), and the involvement of graduate students (who are expected to question as they learn) all support this need. Science is characterized also by a culture that encourages and rewards critical questioning of past results and of colleagues. Id. at 125.

1 SeeTEX.CODE CRIM. PROC. art. 11.073.

2 Id. art. 11.073(b).

3 Id. art. 11.073(b)(1)(A).

4 Id. art. 11.073(d) (emphasis added).

5 Id. art. 11.073(c) (“For purposes of Section 4(a)(1), Article 11.07, Section 5(a)(1), Article 11.071, and Section 9(a), Article 11.072, a claim or issue could not have been presented previously in an original application or in a previously considered application if the claim or issue is based on relevant scientific evidence that was not ascertainable through the exercise of reasonable diligence by the convicted person on or before the date on which the original application or a previously considered application, as applicable, was filed.”).

6 See id.art. 11.07, § 4(a)(1) (“If a subsequent application for a writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that ... the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application.”), (b) (“For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.”).

7 SeeEx parte Oranday–Garcia, 410 S.W.3d 865 (Tex.Crim.App.2013) (applicant must make out a prima facie case for relief under the new law he identifies to avoid dismissal under subsequent-application prohibitions).

1 Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991).

2 Ex parte Rieck, 144 S.W.3d 510, 512 (Tex.Crim.App.2004).

3 See, e.g.,Dobbs v. State, 434 S.W.3d 166, 171 (Tex.Crim.App.2014); Watson v. State, 369 S.W.3d 865, 870 (Tex.Crim.App.2012); Boykin, 818 S.W.2d at 786.

4 “Scientific Method.” Merriam–Webster.com, http:// www.merriam-webster.com/ dictionary/scientific method (last visited October 8, 2014).

5 See, e.g.,Clinton v. State, 354 S.W.3d 795, 801–802 (Tex.Crim.App.2011); Garza v. State, 213 S.W.3d 338, 349 (Tex.Crim.App.2007) (“We must presume that ‘in enacting a statute, the Legislature intends the entire statute to be effective[,]’ and did not intend a useless thing.”).

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6 Ante, op. at ––––.

7 Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (outlining factors that bear on the admissibility of scientific evidence under Federal Rule of Evidence 702).

8 Ante, op. at –––– – ––––.

9 Garza, 213 S.W.3d at 349.

10 Compare Tex. S.B.1976, 81st Leg., R.S. (2009) with Acts 2013, 83rd Leg., ch. 41 (S.B.344), § 1 (effective Sept. 1, 2013).

11 Senate Research Center, Bill Analysis, Tex. S.B.1976, 81st Leg. R.S. at 1 (2009).

12 House Research Organization, Bill Analysis, Tex. S.B.1976, 81st Leg. R.S. at 3 (2009).

13 Ante, op. at –––– – –––– (Cochran, J., concurring).

14 Tex. S.B. 317, 82nd Leg., R.S. (2011).

15 Tex. H.B. 220, 82nd Leg., R.S. (2011).

16 Hearing on H.B. 220 Before the House of Represenative Committee on Criminal Jurisprudence, 82nd Leg., R.S. (Feb.

22, 2011) available at http://www.house.state.tx.us/video-audio/committee-broadcasts/82 (statement from author Rep. Pete Gallego) (self-transcribed).

17 Id.

18 Id. at 13 (Cochran, J., concurring).

19 Acts 2013, 83rd Leg., ch. 41 (S.B.344), § 1 (effective Sept. 1, 2013).

20 Hearing on S.B. 334 Before the Senate Committee on Criminal Justice, 83rd Leg., R.S. (Mar. 12, 2013) (statement from Justin Wood, Harris County Criminal District Attorney’s Office).

21 Senate Research Center, Bill Analysis, SB 344, 83rd Leg.

22 Ante, op. at –––– (Cochran, J., concurring).

23 Ex parte Robbins, 360 S.W.3d 446 (Tex.Crim.App.2011).

24 Hearing on S.B. 334 Before the Senate Committee on Criminal Justice, 83rd Leg., R.S. (Mar. 12, 2013) available at http:// www.senate.state.tx.us/avarchive/yr=2013 (statement from author Sen. John Whitmire) (self-transcribed).

25 Hearing on H.B. 967 Before the House of Representatives Committee on Criminal Jurisprudence, 83rd Leg., R.S. (April 23, 2013) available at http://www.house.state.tx.us/video-audio/committee-broadcasts/83 (statement from author Rep. Sylvester Turner) (self-transcribed).

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26 Id.(testimony of Rep. Sylvester Turner) (self-transcribed).

27 Id. (testimony of Jeff Blackburn of the Innocence Project of Texas) (self-transcribed).

28 Ante, op. at ––––.

29 384 S.W.3d 833, 837 (Tex.Crim.2012) (Cochran, J., concurring).

30 Ante, op. at ––––.

31 Ante, op. at ––––.

32 SeeTEX.CODE.CRIM. PROC. art. 11.073(d).

33 SeeEx parte Oranday–Garcia, 410 S.W.3d 865, 867 (Tex.Crim.App.2013).

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