At its conference last week (on May 10, 2012), the United States Supreme Court did what it always does: confers on petitions placed before it, and decides if they should be granted.  If you’re interested, you can follow this process week after week as it is live-blogged over at

Of particular interest, the case of Robbins v. Texas, where the issue before the High Court is whether a new trial is required for a convicted defendant when scientific evidence is later determined to be unreliable.  In Robbins, the doctor who took the stand on behalf of the prosecution in the role of medical examiner, Dr. Patricia Moore, changed her opinion — after the trial was over and the defendant sentenced to life imprisonment for capital murder of his girlfriend’s baby.  (Thank God, there was no death sentence here – but this capital case and its due process arguments do impact on death penalty defense.)

Seems there are lots and lots of medical experts that have gone on the record in this case to state that it’s not clear how this baby died … and there may have been no crime here whatsoever.  But it’s not just experts arguing about causation: here, the medical examiner who took the state for the State of Texas has changed her opinion about cause of death.  That’s a big deal. 

No homicide.  Big mistake at trial, right? Another wrongful conviction ….

And yet, the Texas appellate courts haven’t fixed this.  Here’s the opinion from the highest criminal court in the State of Texas regarding Robbins’ arguments.

From the amicus brief filed by the Innocence Project: (emphasis added)

First, the Texas appellate court’s decision turns the burden of proof on its head by requiring Petitioner to disprove an element of a crime – that the child’s death was the result of a homicide – in order to receive a new trial. Under this standard, Petitioner can not obtain a new trial because he can not prove that there was no crime, even though the central evidence at Petitioner’s trial that a crime occurred has been refuted by the very expert who originally offered the evidence. The Texas court of appeals has created a standard that is impossible to satisfy where – as here – forensic science can neither support nor disprove the conclusion presented to the

Second, the Texas appellate court failed to recognize that the conclusion presented to the jury at Petitioner’s trial – that, within a reasonable degree of scientific certainty, the victim had been murdered – was in fact false. Dr. Moore’s retraction of her trial testimony did not signify simply that she was less certain about whether Tristen’s  death was a homicide. Instead, it completely refuted the central evidence at trial that  a crime occurred by confirming that the results of the autopsy did not support any conclusion as to the cause and manner of Tristen’s death. Therefore, the scientific  conclusion that was presented to the jury was, as a matter of science, actually false.  The Texas appellate court’s decision requiring Petitioner to prove that homicide was not a possibility in order to show that the conclusion was false fails to account for the nature and role of scientific evidence.

Third, the Texas appellate court’s decision fails to account for the uniquely  persuasive impact of scientific evidence in criminal trials. Given jurors’ inclination to assign significant weight to scientific expert testimony, once Dr. Moore testified that Tristen’s death was caused by a criminal act, the jury likely focused on whether it was Petitioner who committed the crime, instead of whether a crime was committed at all.

And just as Dr. Moore’s testimony likely carried significant weight with the jury, so would testimony that the cause and manner of death was “undetermined.” Therefore, if the forensic evidence had been presented to the jury accurately – which would  have established that forensic science could not determine how Tristen died – such evidence certainly would have affected how the jury evaluated all of the evidence  against Petitioner. If the decision of the Texas Court of Criminal Appeals is allowed to stand, Petitioner will be denied a new trial even though the central scientific evidence supporting his conviction has been shown to be so unreliable that the accuracy of the jury’s guilty verdict has been critically undermined. Such a result does not comport with due process.


For the foregoing reasons, and for the reasons stated in the petition, the petition for certiorari should be granted.

This morning, the Supreme Court denied cert in Robbins (read the order here).  No explanation given.