ME testimony false according to science but not Texas law, or, Elsa Alcala's first solo dance earns spotlight

Ever since Grits performed a rather extensive analysis of Judge Elsa Alcala's criminal opinions from the First Court of Appeals, I've been interested to see where Governor Perry's latest appointee to the Texas Court of Criminal Appeals will fit in with Judge Keller and Co.. Every member of the Texas CCA is a rock-ribbed Republican with impeccable pro-death penalty, pro-law enforcement credentials, which is why in Grits view there's no "liberal" faction on the court nor even a centrist one. There's a conservative faction and a more or less totalitarian wing whose goal is to convict at any cost and who reliably side with the government nearly across the board in their rulings. Alcala replaced a member of the more moderate/conservative wing of the court. How will she position herself among her colleagues?

Our first strong impression on that subject, that I'm aware of, anyway, comes in a case described by B.W. Barnett over at Liberty and Justice for Y'all: Ex Parte Neal Hampton Robbins. Here's Barnett's excellent, succinct summary of the case:

In 1999, Neal Robbins was convicted of capital murder and sentenced to life in prison for the death of his girlfriend’s 17 month-old child. The cause of death as reported by the medical examiner was asphyxiation by compression. The medical examiner testified to her theory at trial and despite contrary evidence that the compression wounds may have resulted from adult administered CPR, the jury convicted Robbins of capital murder.

In 2007, at the urging of one of Robbins’s acquaintances, the original findings of the medical examiner were reviewed by the Harris County Medical Examiner’s Office. The Deputy Chief Medical Examiner disagreed with the findings and the trial testimony of the original medical examiner. The autopsy report was then amended to reflect that the cause and manner of death was “undetermined.” Eventually, the original medical examiner was asked to review her prior findings. In a letter to the district attorney, she stated:

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

She went on to explain that the bruises she originally equated with asphyxiation by compression could have resulted from aggressive CPR and other efforts to assist the child.

Armed with the recantation of the chief government witness, Robbins filed an application for writ of habeas corpus in June of 2007. The State did not oppose the application and recommended that Robbins be given a new trial “because his due process rights to a fair trial and impartial jury were violated.” In response, the trial court appointed yet another medical to review the evidence and offer an opinion. This time, the chairman of the Department of Pathology at Baylor College of Medicine opined that the original determination of the cause of death, as presented in the capital trial, could not be supported by the evidence.

Not satisfied with this opinion, the trial court ordered one last review by another pathologist. This last and final pathologist stated that it was her opinion that the child’s death was a homicide and that the manner of death was asphyxia by suffocation (a theory not presented at the original trial). After this finding, the State withdrew its recommendation that a new trial be granted, but agreed not to oppose the request for a new trial.

After an evidentiary hearing into the cause of the child’s death, the trial court recommended that the Texas Court of Criminal Appeals grant Robbins’s request for a new trial.

A slim majority (5-4) of the CCA was not equally convinced.

The majority opinion (pdf) in the 5-4 decision declared that testimony by a medical examiner about an autopsy "has not been proven false" even though the medical examiner (ME) herself and numerous other experts concurred that her trial testimony gave the jury inappropriate conclusions not supported by science. In this case the CCA was more pro-government than the government: Prosecutors in the case had concurred with the habeas writ and the lower court judge concluded that the recanting ME's "opinions were the sole bases of the State's case as to cause and manner of death, without which the State would not have obtained a conviction."

This case demonstrates well why the Legislature needs to pass the bill carried both in 2009 and this last session by State Sen. John Whitmire and state Rep. Pete Gallego that would allow habeas writs to proceed where science changes and experts agree testimony at trial was false. The bills were blocked both sessions by the Harris County District Attorneys Office, though the Dallas DA supported the change and the bill was recommended by the Timothy Cole Innocence Advisory Panel during the interim after the 81st session.

In Robbins' case, one also sees shades of the Todd Willingham controversy: The science supporting both men's convictions - portrayed as conclusive to the respective juries - has now been debunked. The state's theory of the crimes thence becomes mere assertion with no factual support. But because no one can prove a negative - in this case that the child wasn't strangled (the cause of death is now considered undetermined) - the CCA majority said prosecutors and lower court judge got it wrong. Now, barring a pardon from the governor or future clemency from the parole board, Mr. Robbins will stay in prison - quite possibly innocent - to serve out his life sentence.

Judge Cochran wrote a dissenting opinion arguing that, while in her view Robbins hadn't definitively proven his innocence, "given the experienced trial and habeas judge’s legitimate and serious concerns about the impact of [the medical examiner’s] testimony at trial on the critical and hotly disputed issue of [the child’s] cause of death, I agree that applicant did not receive a fundamentally fair trial based upon reliable scientific evidence."

But Judge Elsa Alcala - the new kid on the block - wrote a rather stinging opinion that shows how tepid and moderate even the conservative bloc on the CCA has become. Her dissent (pdf) opens:

The Due Process Clause of the Fourteenth Amendment is violated when the State knowingly or unknowingly uses perjured testimony to obtain a conviction. Ex parte Chabot, 300 S.W.3d 768, 770-71 (Tex. Crim. App. 2009); Ex parte Napper, 322 S.W.3d 202, 242 (Tex. Crim. App. 2010) ("Chabot simply stands for the proposition that the preponderance of the evidence standard is appropriate for the unknowing use of perjured testimony that the habeas applicant had no prior opportunity to discover."). The term "perjury" in this context requires proof that the testimony "gives the trier of fact a false impression," but it does not require proof of the elements of "perjury" as that term is defined in the penal code. See Ex parte Ghahremani, 332 S.W.3d 470, 477-78 (Tex. Crim. App. 2011); see also Napper, 322 S.W.3d at 242 (citing Estrada v. State, 313 S.W.3d 274, 287 (Tex. Crim. App. 2010) ("[W]e held on direct appeal that false testimony that was not perjury resulted in a due process violation when there was 'a fair probability that [the] death sentence was based upon . . . incorrect testimony.'").

The trial court found that Dr. Moore's trial testimony was false. The trial court's findings state that "Dr. Moore's trial opinions were not true. They were based on false pretenses of competence, objectivity, and underlying pathological reasoning, and were not given in good faith." The trial court characterized her testimony as "expert fiction calculated to attain a criminal conviction." The record supports the trial court's characterization concerning the falseness of the testimony.

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

I recognize that, as noted by the majority opinion, the record shows that neither Dr. Moore nor any of the other testifying experts can "exclude" asphyxial homicide as a possible cause of death or "rul[e] out other reasonable hypotheses by which Tristen died." In other words, because Dr. Moore presently acknowledges that the cause of Tristen's death could possibly have been homicide and possibly by asphyxiation, the majority opinion determines that her new testimony does not show that her earlier testimony is false. But Dr. Moore is merely acknowledging the possibility that this cause and manner of death could be true because her opinion is, beyond a reasonable doubt, that she does not know the cause and manner of death. The fact that a witness acknowledges a mere possibility of an alternative hypothesis is not a failsafe escape for due process violations.

The Supreme Court has disallowed this technical splicing of the truth to avoid due process violations. In evaluating whether evidence is false, it has focused on whether the testimony, taken as a whole, gives the jury a false impression.

For Alcala, the issue was simple: "Robbins's due process rights were violated by the false, material trial testimony by the State's sole medical expert establishing cause and manner of death,” she concluded, an error made more egregious because, the trial court had found, the ME's opinion was "not given in good faith." Another notable tidbit came from a footnote where she explained why she did not join Judge Cochran's dissent:

Although I agree with many of the assessments in the Honorable Judge Cochran's dissenting opinion, I do not join that opinion because the change in Dr. Moore's testimony is not due to new scientific principles but is instead, according to her, due to her having more experience as a medical examiner, and according to the trial court's findings, due to her trial testimony being the result of prosecutorial bias. None of the medical examiners who testified for the application for writ of habeas corpus describe their testimony as stemming from new scientific principles. Compare Ex parte Henderson, 246 S.W.3d 690, 691 (Tex. Crim. App. 2007) ("That material [affidavits and reports of several scientists] indicates that what is called the biomedical analysis of infant head trauma (an area of scientific research that was beginning to develop in 1995 when applicant was tried and convicted) now shows that the type of head injuries that Brandon Baugh suffered could have been caused by an accidental short fall onto concrete."). The testimony Dr. Moore gave at the writ hearing concerning her uncertainty about cause and manner of death is very similar to the testimony given by Dr. Robert Bux, the medical examiner testifying for Robbins at the trial, and her changed testimony is not due to advances in science. 

So Judge Alcala doesn't actually believe, from her reading of the record, that the science has changed. In her view, the erroneous testimony was "not due to new scientific principles but is instead ... according to the trial court's findings, due to [the ME's] trial testimony being the result of prosecutorial bias."  Another footnote declared:

Dr. Moore acknowledges that she had been cited for improper work and evaluated as being biased in favor of the prosecution. Her supervisor, Dr. Joye Carter, had questioned her impartiality and suggested that she had not successfully transitioned into the neutral position of a forensic pathologist. Furthermore, Dr. Moore had provided similar recantations in other cases as well. This evidence seems to support the trial court's findings that the false trial testimony by Dr. Moore was not given in good faith. However, I need not reach the issue of whether Dr. Moore acted in bad faith, because Robbins has met the burden of proof to show by a preponderance of the evidence that he was harmed by Dr. Moore's false testimony.

Bravo, Judge Alcala! It's been a while since we've seen that kind of straight shooting from a judge on the CCA. I hope she keeps it up. Judge Barbara Hervey has given plenty of lip service to the need to reduce reliance on junk science, but the one thing the court has been unwilling to do is to use their own judicial authority to correct such problems. Judge Alcala seems to feel no such restraint, at least in this opinion; bully for her!

In the meantime, though, Mr. Robbins remains in prison, with a very good chance that he's actually innocent of the horrible crime for which he was convicted. Given that, Grits believes the Board of Pardons and Paroles and Governor Rick Perry should grant Mr. Robbins a pardon or at least a commutation of his sentence, since the courts refused to deliver justice in the case. To have his sentence commuted - see the requirements here (pdf) - would require "A written recommendation of a majority of the current trial officials (the present prosecuting attorney, judge, and sheriff/chief of police of the arresting agency from the county and court of offense," which given the court record one imagines he could get in this instance. It's a longshot, of course, but barring passage in some future session of writ-reform legislation, it's possibly the only chance Mr. Robbins has left, certainly in the state court system.