Shaky science, un-recorded confession form basis of El Paso habeas writ

Jordan Smith at the Austin Chronicle has an excellent new story out ("Science goes to court," Nov. 1) regarding a habeas writ challenging a child-murder conviction out of El Paso. The defendant is seeking relief based on Texas' new law, authored this year by state Sen. John Whitmire and Rep. Sylvester Turner, allowing relief when new scientific developments contradict expert testimony at trial. (In this interest of full disclosure, this was legislation your correspondent helped promote on behalf of my employers at the Innocence Project of Texas.)

As is likely to be the case in much of the litigation surrounding this new habeas provision, the debate centers on whether the defendant's writ relies on new science or evidence that should have been available at the time of trial - in this case biomechanical modeling that has debunked many of the underlying premises of "shaken baby syndrome" and other expert testimony about child trauma. Wrote Smith:

Biomechanics has long been relied on for injury prevention and repair – the development of air bags in vehicles, of helmets to protect football players' heads, of replacement hips and knees – but only recently has biomechanics been incorporated into a criminal law context, to describe with scientific certainty the force needed to cause specific injury. Biomechanical engineering is pivotal to the reconsideration of cases of so-called "shaken baby syndrome," or SBS, and has demonstrated that simple shaking by an adult cannot create the force necessary to kill a child.

"Many if not most non-physicians assume that physicians, skilled in the art of medicine, must have particular knowledge of injury mechanisms. This assumption is wrong," John Plunkett, a veteran pathologist and expert in the diagnosis of child injuries who has been a vocal critic of SBS, wrote in an affidavit filed along with a new appeal in Avila's case. For the most part, physicians, such as Raschbaum, "need not know or apply injury mechanics if they are responsible for diagnosis and treatment," Plunkett continued. "However, if a physician ventures from diagnosis and treatment to speculation of the ultimate force, stress, or energy required to cause injury, he/she must understand mechanics ... and perform or refer to the appropriate experiments."

At the time of [Rigoberto] Avila's trial, and first appeals, biomechanics was not being applied to criminal cases involving child abdominal injuries, a leading cause of death in children, Plunkett and other experts say. Now, Plunkett wrote, such an analysis prior to deciding whether an injury is criminal or not would be "mandatory."

The argument that Avila's conviction was based on faulty, pseudo-scientific conclusions is at the heart of a new appeal filed in September. The appeal cites passage this spring by state lawmakers of Texas' first-in-the-nation law to allow for appeals based upon relevant and newly ascertainable, or evolved, science that contradicts evidence used at trial. The new statute took effect Sept. 1, and is an acknowledgment that criminal law – rigid and, importantly, wedded to finality – must evolve to keep pace with scientific advances.

The principal dispute, Smith reported, surrounds whether biomechanical research regarding child trauma is new science or merely old science re-packaged:

El Paso District Attorney Jaime Esparza does not agree that Avila's case falls under the new law. In a motion filed in October on Esparza's behalf, prosecutor Tom Darnold argues that there is nothing new about the science involved in the case that would warrant review. "Avila acknowledges that the relevant scientific knowledge, that is, the physics of impacts, dates back to Newton and has not undergone significant change since Avila filed his first writ application" 10 years ago, reads a motion to dismiss the case. And even "Reimann notes [in his affidavit] that his analysis of these types of issues is 'based on introductory physics normally presented in a general physics course required for biological, health-science, and pre-med students,'" Darnold noted. As such, the "materials Avila has submitted ... defeat his claim that the scientific knowledge, or the method on which that relevant scientific knowledge is based, has changed since the time he filed his first writ application." And the fact that biomechanics was understood and practiced at the time Avila was tried means only that his lawyers didn't exercise "reasonable diligence" in seeking out that knowledge to present at trial. The plain language of the new law, he notes, "does not authorize the consideration of the merits of a subsequent writ ... based on scientific knowledge that was previously available but not commonly used, or based on scientific knowledge that was previously available but simply was not sought out by the doctors or attorneys in the case."

While it's true that biomechanics takes basic Newtonian physics – the law of bodies in motion – and applies it to living tissues, there is nothing at all static about the science involved, says Peter Stephens, a retired forensic pathologist. And when he hears people dismiss the science as not new or say something like, "'We've moved beyond Newtonian physics now,' most of us just roll our eyes." The fact of the matter, says Stephens, is that using biomechanics as a diagnostic tool for childhood injury is fairly cutting-edge – particularly when it comes to assessing abdominal injuries, like that which ultimately killed Nicholas.

The whole "shaken baby syndrome" (SBS) fiasco - where a field of expert testimony arose in the 1970s to prosecute cases without the underlying science having been tested (see background here) - was one of the brands of junk science under consideration when this new legislation was passed. Grits has no direct knowledge about when new biomechanical modeling that debunked SBS was applied to other types of injuries like the ones in this case. But the idea that the claim should be denied because the physics of impacts "dates back to Newton" is a laughable stance that ignores the history of SBS and the belated rise of biomechanical modeling that has only recently countered it.

Indeed, later this month in Dallas a "World Conference on Infant Head Trauma" will convene to evaluate the evolving status of science in this area. According to the event's website, "The World Congress on Infant Head Trauma brings together international speakers to find common ground and debate controversial topics in pediatric forensic pathology. This unique congress focuses primarily on the pathology and etiology of head trauma (and its mimics) and not the overarching issue of child abuse." This is still very much an evolving field.

In the wake of the new law, not to mention the National Academy of Sciences report in 2009 calling into question an array of non-scientific forensics, we're going to see more habeas writs focused on the question of "what did science know and when did it know it?" That's as it should be.

The case also highlights the drawbacks of failing to record custodial police interrogations. (Regular readers will recall that requiring such interrogations to be recorded is the final, un-enacted recommendation of Texas' Timothy Cole Advisory Panel on Wrongful Convictions.) Here's how Smith described the circumstances of the disputed confession:

Around 11pm that night, as Raschbaum worked on Nicholas [the child victim] at the hospital, Avila was taken to the El Paso PD to give a statement to Det. Tony Tabullo, then a 24-year veteran of the force. Avila was already a suspect in the case, and around 11:30pm Tabullo advised him of his rights before beginning the interview. At roughly 2:10am, Avila signed a statement wherein he detailed that he had been watching TV when Dylan told him that Nicholas wasn't breathing; per Tabullo's instructions, Avila read and placed his initials before and after each paragraph of the statement, and next to the time and date – 23 separate places in all – before signing off on the document.

What happened next is disputed. Accord­ing to Tabullo, after he took Avila's statement he found out that Polaroid photos of Nicholas' body had been brought to the police station. Those photos, he testified, revealed a large area of bruising across Nicholas' chest (the bruised area was seven inches by three inches, according to the autopsy report) that resembled a shoe print. Armed with this information, Tabullo said, he returned to Avila and confronted him with what he considered evidence that Avila had stomped on the baby's chest. Tabullo asked Avila if he could see his shoe; Avila complied. "Well, I asked him," after inspecting Avila's sneaker, "do you want to tell me the truth?" Tabullo testified. "He said yes. He shed a few tears and started telling me the truth."

The truth, according to a second statement Tabullo said Avila offered, hours later, at 5:46am, was that while Avila was watching the basketball game at Macias' apartment he got up and went to the bedroom where Nicholas was alone. "I saw him laying on the floor," reads the second statement. "I don't know what came over me, but I walked over to him and stamped on him with my right foot." Avila then allegedly picked Nicholas up and brought him into the living room where Dylan shook Nicholas to try to "wake him up" and then hit him on the chest with a magazine. Avila called 911. Why had he done it? According to the second statement, it was because he was "jealous" that Macias paid so much attention to the toddler.

According to Avila, Tabullo fabricated that second statement. He said that when Tabullo returned to the interview room where he'd been left after making his first statement, Tabullo confronted him with the photos of the alleged shoe-print bruise. Avila said he knew nothing about the injury, he testified in court. Tabullo told Avila he would have to wait a while longer in an interview room. Tired, Avila asked if he could leave; no, not until Tabullo was "done with you," he testified. Avila was tired and was falling asleep as they talked, he recalled. "I said, 'Is it okay if I go to sleep,' and he says, 'Yes,'" Avila testified. "He goes, 'I just need to make some changes on the statement.' He says, 'If you want ... I'll wake you up when I'm done.'" And that, said Avila, is what he did. When Tabullo woke him up later, Avila said, he was told only that he needed to sign his statement again, and that he could then leave. Avila says he did as he was told – without ever reading the new statement. He was then arrested.

Although there is certainly reason to suspect the validity of the second statement – it was conducted by Tabullo alone and was not recorded, and unlike the first statement, Avila did not initial any of the paragraphs, though Tabullo said that's because Avila told him that he trusted the detective and didn't need to go through that – the damage was done.

How much better would it have been for everyone if Avila's interrogation had been recorded? Without a recording no one besides the two men involved can know for sure what happened in that interrogation room. One of them is lying and it's impossible to know who. Maybe in 2015 the Texas Legislature will finish the tasks assigned it by the Tim Cole panel and finally require recording of custodial interrogations. Otherwise, there's little doubt similar situations will continue to arise, calling convictions into question and muddying the waters for appellate courts trying to suss out the mess after the fact.