Interpreting Texas' new junk science writ

Craig Malisow at the Houston Press has an article up on the Neal Hampton Robbins habeas corpus writ, describing the action at last week's oral arguments at the Court of Criminal Appeals. See related coverage here, here, here, here, here and, en Español, here.

The more I think about how oral arguments went in that case, the more difficult it seems to guess where the CCA might land. Judge Larry Meyers, who wrote the majority opinion (pdf) the last time around, seemed isolated in his view that the Legislature had acted unconstitutionally when it passed Sen. John Whitmire's SB 344 creating a new cause of action for habeas corpus writs. Not a single, other judge who was there (Tom Price was absent due to illness) agreed with Meyers - even Sharon Keller, from whom I expected greater hostility to the new law. All but Meyers agreed the Legislature had created a legitimate, new ground for habeas relief. But judges were less convinced that legislative history supported the idea that the Lege intended the case to cover cases like Robbins. Your correspondent was quoted in Malisow's story arguing that they did:

[Robbins' attorney Brian] Wice maintains that the new statute was passed specifically with the Robbins case in mind. Scott Henson, who writes the excellent criminal justice blog Grits for Breakfast, and who has been following the Robbins appeals, agrees.

Henson tells us in an email that when the new statute was being considered in 2011, legislators heard from the only opposition: the Harris County District Attorney's Office.

"Their position previously had been that the law was unnecessary, that the CCA would never sustain a conviction based on erroneous science," Henson writes. "But [the 2011 Robbins decision], which came out just after the 2011 session, proved they would (or at least five of them would) and it's what made [the Harris County D.A.'s Office] back off their opposition."

Indeed, the behind-the-scenes discussions about this bill with the Harris DA were principally about the Robbins decision. It was the main outlier that flew in the face of that office's position the prior two sessions. In light of Robbins, the Harris DA's Office agreed to back off their opposition in exchange for two changes: They wanted the standard for relief changed from it being "reasonably probable" that the jury wouldn't have convicted to saying an applicant must prove the jury wouldn't have convicted by a "preponderance of the evidence." And they insisted that the law say new evidence must "contradict" scientific testimony presented by the state at trial rather than merely "discredit" it. (See the text of the new statute, CCP 11.073, for yourself.)

In prior sessions, the Harris DA wouldn't even discuss the bill's details because they said "false testimony" was already ground for habeas relief based on a due process violation. Essentially, they agreed with Judge Elsa Alcala's dissenting opinion (pdf) in Robbins that "The fact that a witness acknowledges a mere possibility of an alternative hypothesis is not a failsafe escape for due process violations." Like Alcala, they'd suggested that "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." In Robbins, though, a bare majority disagreed, finding that the mere possibility of guilt was sufficient to uphold the conviction, even though Dr. Moore's opinion was "beyond a reasonable doubt, that she does not know the cause and manner of death," as Alcala put it. Once and for all it had been demonstrated that the CCA would not grant relief just because the state secured a conviction based on false scientific testimony.

There were other cases, certainly, that demonstrated the court's confusion and the law's inadequacy with regard to how habeas law should handle junk science presented by the state at trial. As I wrote in 2013 legislative testimony in my role as Policy Director for the Innocence Project of Texas: 

The issue [also] came up in Ex Parte Henderson (2012), [in which] five judges agreed to grant Cathy Lynn Henderson a new trial in a per curiam opinion, but no single interpretation of the law could gain more than four votes on the court, meaning at present there is no clear, agreed upon theory regarding how and why relief may be granted. Such division on the court speaks to a lack of clarity in the law and requires a legislative solution. Henderson is one of a series of recent cases in which a divided court struggled to overcome this glaring gap in Texas habeas law. Both Judge [Cathy] Cochran and dissenters in Henderson agreed that Texas’ current habeas corpus statute lacks clarity regarding how to react when critical scientific evidence supporting a conviction has been discredited. Judge Barbara Hervey, a dissenter who was a member of the Timothy Cole Advisory Panel [which recommended the change in the law], believes Texas habeas law at present simply provides no recourse for such defendants: “Something is missing here,” she wrote. “I cannot find a ground upon which relief should be granted.” Judge Cochran and four other judges thought the law was clear enough to grant a new trial. But she agreed that the “case does not fit neatly into our habeas statute or our actual-innocence jurisprudence.”

Whitmire's bill, my testimony argued, "fills the gap in habeas corpus law that Judge Hervey suggested needs filling, establishing a clear process and standard by which such cases will be evaluated and habeas relief granted." Whether or not Judge Meyers approves, the new law created a new ground for habeas relief separate and apart from the court's "actual innocence" and "false evidence" jurisprudence.

Brian Wice told the CCA that "forensic experts are the new high priests of the courtroom" - a characterization that, while flamboyant, isn't far off the mark. And like any state-sanctioned religion, priests blessed with the imprimatur of government are more likely to be accepted by jurors than experts hired by the accused. A couple of judges on the bench noted that juries are more likely to view state's experts as objective and defense experts as mere hired guns, which is what prosecutors argued to discredit Robbins' expert witness at trial. That's why the new law allows relief if new evidence wasn't available to the defendant at the time (in this case, Dr. Patricia Moore's recantation) and "contradicts scientific evidence relied on by the state at trial." Even if contradicted by defense experts, jurors venerate forensic testimony put on by the government to a far greater extent, particularly when they have no sound basis to personally judge disagreements among dueling experts.

I have no idea how the CCA will rule on Neal Robbins' latest writ. After the oral arguments, it would be difficult to count to five votes in either direction and Judge Price, a possible swing vote, wasn't there to participate in the discussion. But if the issue comes down to legislative history, they'd be ruling in error if the court decides the Robbins ruling played no role in pushing Whitmire's bill over the hump. From my perspective - and I was as closely involved as anybody - it wouldn't have passed if Judges Cochran and Alcala had prevailed in the court's 2011 Robbins decision.