Court of Criminal Appeals Hears Homicide "Junk Science" Case
Obviously, this meant that the homicide the jurors were told to make no bones about wasn't actually a homicide.
When Michael McDougal, the district attorney at the time of the trial, was made aware of this, he agreed with Robbins' appellate attorney, Brian Wice, that Robbins deserved a new trial.
But McDougal was no longer the district attorney, and his replacement didn't share McDougal's opinion. Surely there was another medical expert out there who could say it was a homicide. They sought the opinion of Joye Carter, the chief Harris County Medical Examiner at the time of the original autopsy, but Carter said she could no longer stand by Moore's original findings. It should have been ruled undetermined, Carter told prosecutors.
Ultimately, prosecutors found a pathologist to support their side: former Dallas County Medical Examiner Linda Norton. Unfortunately for them, while Norton expressed her finding in an affidavit, she was never cross-examined -- she ignored subpoenas and blew off deposition dates. In 2011, she voluntarily surrendered her medical license; Texas Medical Board records state that Norton said she suffered from depression and no longer able to practice.
The trial judge, Michael Mayes, recommended in 2010 that the case be heard by the Court of Criminal Appeals. Wice got that chance in 2011. He appealed using the arguments available to him, and any other lawyer, at the time -- actual innocence, and violation of due process because of false testimony.
The court ruled 5-4 to deny a new trial, saying that none of the medical experts' new findings "unquestionably" established Robbins' innocence, and that Moore's original testimony was not false because it "did not result in a false impression of the facts." The court explained that Moore "testified openly" and "did not omit pertinent details." Simply put: testimony that is honest but wrong is not false testimony.
But in September 2013, the state legislature passed a statute that gave attorneys another arrow for the quiver: a mechanism allowing an appeal based on an argument that the defendant was convicted by the state's reliance on false or subsequently discredited scientific evidence. Wice likes to call it the "Neal Hampton Robbins Act."