What happens when an expert changes their mind?
If you follow this blog you know I am critical of the use of forensic science in criminal cases, especially when guilt or innocence depends on the opinion of some expert. In my opinion, forensics should never be used to determine guilt or innocence. Far too often the opinions put forth by experts are subjective, and based on inherent biases. Science also changes - or at least the understanding of certain things changes - which may make an opinion that was valid when given, no longer acceptable. Witness arson cases, where thousands of convictions have been based on nothing more than myths and old wives tales.
So what happens when an expert is called upon to reevaluate their opinion, and decides it is no longer valid. That was the situation presented to the Court of Criminal Appeals in Ex parte Neil Hampton Robbins. Mr. Robbins was charged with capital murder, based on the death of his girlfriend's 17 month old child. The state's case was based largely on the testimony of a medical examiner, Dr. Patricia Moore, who performed the autopsy. She testified that the child died from asphyxia due to the compression of her chest and abdomen. She was subsequently called on to reevaluate that opinion, and stated she could no longer stand by it.
The problem any defendant in this situation faces is establishing a legal basis for relief. Once a defendant is convicted, he must establish actual innocence to obtain relief. That is an extremely high burden, which is rarely met in any cases other than those involving physical evidence - such as DNA. In this case Mr. Robbins fell far short of meeting that burden, because Dr. Moore testified that her current opinion was that the cause of death was undetermined. Essentially she could nott rule out that the death was the result of asphyxiation , but she also could say it was. The endresult is that Mr. Robbins was denied relief. In a issenting opinion, Judge Cochran pointed out that the case " raises a novel and difficult issue for the criminal justice system." She agreed that actual innocence had not been established, but believed Mr. Robbins should get a new trial because he did not receive a fundamentally fair trial based upon reliable scientific evidence. A view, which unfortunately was only shared by three other justices; she believes that the case should be retried to ensure the accuracy of the verdict.
I believe justice Cochran is spot on. How can you have any faith in the criminal justice system, if a defendant is based on evidence that would probably not support a conviction at the current time. In other words if Mr. Robbins were retried he would probably be found not guilty. Yet he will have to remain in prison probably for the rest of his life because he cannot meet some arbitrary legal definition.
Mr. Robbins also tried an alternate approach which was to argue that Dr. Moore's testimony was false. The court rejected that claim, because the testimony was not in fact false.
Along with justice Cochran's opinion, the bright spot in this case was the opinion of the newest justice, who has recently been appointed. Judge Alcala dissented, believing Mr. Robbins should be granted relief because he was denied due process of law.
As long as the criminal justice system is going to rely on scientists to determine guilt or innocence, it needs a process to remedy this type of situation. It occurs far too often, and defendants basically have no relief. That is not right, and hopefully someday at least one other justices will agree.
As a side note, the Texas Legislature has actually addressed this in the last two sessions. A bill was introduced - and approved - to reform the habeas statute to allow this type of claim. Regrettably, it has died both times as a political casualty of arguments over other bills. Even though everyone agreed, it has still not passed. Maybe one day partisan politics will allow a good piece of legislation to survive - at least one can hope. For the time being, defendants like Mr. Robbins have not remedy.
