WR-73,484-02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 5/28/2015 10:40:39 AM
Accepted 5/28/2015 11:10:35 AM
May 28, 2015 ABEL ACOSTA
IN THE CLERK
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
EX PARTE §
§
§ NO. WR-73,484-02
§
NEAL HAMPTON ROBBINS §
**************************
SUCCESSIVE APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. 98-06-0075-CR FROM THE
410TH JUDICIAL DISTRICT COURT OF MONTGOMERY COUNTY
**************************
AMICUS CURIAE SUPPLEMENTAL BRIEF
BY THE INNOCENCE PROJECT OF TEXAS
**************************
GARY A. UDASHEN
Bar Card Number 20369590
SORRELS, UDASHEN & ANTON
2311 CEDAR SPRINGS ROAD
SUITE 250
DALLAS, TEXAS 75201
(214) 468-8100
(214) 468-8104 FAX
BOARD PRESIDENT
INNOCENCE PROJECT OF TEXAS
TABLE OF CONTENTS
Page
TABLE OF CONTENTS........................................................................................... i
INDEX OF AUTHORITIES. .............................................................................. ii-iii
STATEMENT BY AMICUS CURIAE PURSUANT TO T. R. APP. P. 11 . ......... 2
ISSUE PRESENTED ............................................................................................ 2-3
SUMMARY OF THE ARGUMENT . .................................................................. 3-5
ARGUMENT ........................................................................................................... 5
a. H.B. 3724 . ........................................................................................ 5-7
b. Hair Review ...................................................................................... 7-8
c. Ex Parte Keller ................................................................................ 8-9
d. National Attention . ......................................................................... 9-10
e. Legislative Intent .......................................................................... 10-14
f. Texas Leads The Way . ................................................................. 14-17
CONCLUSION AND PRAYER FOR RELIEF .................................................... 17
CERTIFICATE OF SERVICE. .............................................................................. 18
CERTIFICATE OF COMPLIANCE ..................................................................... 19
-i-
INDEX OF AUTHORITIES
Cases Page
Ex Parte Daniel Keller, No. WR-36,232-02 (May 20, 2015) .................... 4, 8, 9, 17
Ex Parte Frances Keller, No. WR-36,864-02 (May 20, 2015) . ................ 4, 8, 9, 17
Ex parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) . ........................... 16
Ex Parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012)......................... 17
Ex Parte Neal Hampton Robbins, ___ S.W.3d ___
(Tex. Crim. App. Nov. 26, 2014) ........................................................................ 3-15
Ex Parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011). .. 5, 7, 9, 11, 12, 16, 17
Tillman v. State, 354 S.W.3d 425 (Tex. Crim. App. 2011) . .................................. 16
Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010) . .................................. 16
Codes and Rules
Tex. Code Crim. Proc. Art. 11.073 . ................................................................ Passim
Tex. Code Crim. Proc. Art. 38.01 . ......................................................................... 15
Tex. Code Crim. Proc. Art. 38.141 . ....................................................................... 15
Tex. Code Crim. Proc. Art. 38.20 . ......................................................................... 15
Tex. Code Crim. Proc. Art. 38.43. .......................................................................... 15
Published Articles
“FBI admits flaws in hair analysis over decades,”
Washington Post, April 18, 2015.............................................................................. 7
-ii-
FBI/DOJ Microscopic Hair Comparison
Analysis Review, Press Release................................................................................ 7
“In Texas, A New Law Lets Defendants Fight Bad Science,”
Atlantic Magazine, February 28, 2014.................................................................... 16
Lindell, “1992 sex case over day care tossed”
(www.statesman.com May 21, 2015). ...................................................................... 9
The Innocence Project, Understand the Causes: Unreliable-Limited Science....... 14
Miscellaneous
House Bill 48. ......................................................................................................... 15
House Bill 3724. ................................................................................................ 4, 5-7
House Research Organization Bill Analysis of SB344........................................... 13
Senate Bill Analysis . ................................................................................................ 6
-iii-
IN THE
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
EX PARTE §
§
§ NO. WR-73,484-02
§
NEAL HAMPTON ROBBINS §
**************************
SUCCESSIVE APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. 98-06-0075-CR FROM THE
410TH JUDICIAL DISTRICT COURT OF MONTGOMERY COUNTY
**************************
AMICUS CURIAE SUPPLEMENTAL BRIEF
BY THE INNOCENCE PROJECT OF TEXAS
**************************
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
NOW COMES The Innocence Project of Texas and submits this Amicus
Curiae Supplemental Brief in the above styled and numbered case. This brief
supplements the previous Amicus Curiae Brief filed by the Innocence Project of Texas
prior to original submission of this case.
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 1
Statement by Amicus Curiae Pursuant to T. R. App. P. 11
This brief is submitted on behalf of the Innocence Project of Texas. The
Innocence Project of Texas is a 501(c)(3) non-profit organization whose work
involves seeking to free wrongfully convicted persons from prison and seeking
reforms in the Criminal Justice System that will decrease the chances of innocent
persons being convicted. The Innocence Project of Texas Board of Directors is
composed of volunteer attorneys from around the State of Texas. This brief is
submitted by Gary A. Udashen, Board President of the Innocence Project of Texas,
and no fee has been paid to any attorney for preparation of this Amicus Curiae Brief.
The Innocence Project of Texas has been active in attempts to combat the use
of invalid and discredited scientific evidence in the criminal courts of Texas. Art.
11.073, Tex. Code Crim. Proc. is one of the most important steps taken in support of
this goal. The Innocence Project of Texas was one of the groups that supported the
passage of the statute and several officers and directors of the Innocence Project of
Texas testified to the Legislative committees that considered Art. 11.073.
ISSUE PRESENTED
Art. 11.073, by its plain language, covers the factual situation presented in the
Robbins case. Moreover, the clear intent of the Legislature, in enacting Art. 11.073,
was to provide relief under the factual scenario presented in this case. For these
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 2
reasons, the Court’s opinion in Robbins II1 was correct and should be reaffirmed on
rehearing.
SUMMARY OF THE ARGUMENT
The Court’s opinion in Robbins II correctly analyzes the language and
legislative intent of 11.073.
The plain language of Art. 11.073 provides a vehicle for providing relief in this
case. Dr. Moore’s disavowal of her previously expressed opinion on the manner and
cause of the complainant’s death was based on a change in Dr. Moore’s own scientific
knowledge. Dr. Moore followed a normal scientific method of analysis in conducting
her re-evaluation of the case. She noted that she had eight years of additional
experience and training. She became aware of the review and analysis of this case by
other, more qualified and experienced medical examiners, who concluded that the
proper cause and manner of death was undetermined. Following her consideration of
these critical factors, Dr. Moore opined that her initial conclusion as to the manner and
cause of death was incorrect and should have been listed as undetermined. This is a
classic employment of the scientific method of analysis, resulting in a change in the
scientific knowledge available on this case. That is precisely what Art. 11.073
requires in order for relief to be granted. This change of the scientific knowledge was
not available to be offered by Robbins at his trial and contradicts the scientific
1
Ex Parte Neal Hampton Robbins, ___ S.W.3d ___ (Tex. Crim. App. Nov. 26, 2014) (not yet
published) (Robbins II).
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 3
evidence relied on by the State at trial.
Moreover, to the extent that there is any ambiguity concerning the precise
meaning of Art. 11.073, and its application to the facts here, the legislative history
provides the answers. The Legislature, in enacting 11.073, was fully aware of the
Court’s opinion in the first Robbins writ. The Robbins case was the focal point of
much of the discussion surrounding this bill and it is clear that, by enacting Art.
11.073, the Legislature intended to provide a clear legal ground for relief for Robbins,
and those similarly situated, based on the change in the scientific evidence underlying
this conviction.
Additionally, since the State moved for rehearing on this case, the landscape has
further changed in support of the Court’s opinion granting relief in Robbins II. First,
the Legislature enacted H.B. 3724, which amended Art. 11.073 to codify the majority
opinion granting relief in Robbins II. Secondly, the FBI and Justice Department have
issued a press release stating that their preliminary review of hair analysis testimony
for a 20 year period ending around 2000 shows that in 95% of the cases incorrect
scientific testimony was presented. This was testimony consisting of bad science,
presented by bad scientists. Third, this Court issued orders in Ex Parte Daniel Keller,
No. WR-36,232-02 (May 20, 2015) (not designated for publication) and Ex Parte
Frances Keller, No. WR-36,864-02 (May 20, 2015) (not designated for publication).
In the Keller cases, the Court granted habeas relief when a medical doctor admitted
having provided incorrect testimony at trial. This is precisely the situation on which
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 4
this Court denied relief in Robbins I.2
ARGUMENT
Neal Robbins quest for justice has been long and frustrating. Everybody
seemingly agrees that he was convicted based on invalid scientific testimony that did
not withstand the test of time. Yet, years later, the courts are still considering, and
reconsidering, whether this indisputable fact is enough to warrant a new trial.
In November of 2014, it appeared that this Court had finally and fairly
answered this question by vacating this conviction and granting habeas relief.
Nevertheless, Robbins is once again before the Court for a reconsideration of its
decision in Robbins II.
Since November, and since the filing and granting of the State’s rehearing
motion, there have been several significant events that demonstrate that the Court got
it right in Robbins II.
a. H.B. 3724
First, the Texas Legislature recently, and overwhelmingly, passed H.B. 3724.
This bill amended Art. 11.073, Tex. Code Crim. Proc. in order to ensure that the
majority opinion in Robbins II remains the law. The language of this amendment is:
(d) In making a finding as to whether relevant scientific evidence was
not ascertainable through the exercise of reasonable diligence on or
before a specific date, the court shall consider whether the field of
scientific knowledge, a testifying expert’s scientific knowledge, or a
2
Ex Parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011) (Robbins I).
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 5
scientific method on which the relevant scientific evidence is based has
changed . . . (emphasis added)
In particular, this amendment states that a change in “a testifying expert’s
scientific knowledge,” is covered under 11.073. This simple language was a
codification of the majority’s decision in Robbins II, and was written with one purpose
in mind: to make it clear that the Court’s prior interpretation of 11.073 was correct.
The Legislature was well aware of the Court’s consideration of the State’s motion for
rehearing, and of the position taken by three of the four dissenting judges that 11.073
did not cover the Robbins case.3 In codifying by statute the majority’s interpretation
of 11.073, the legislature made its position clear: 11.073 covers Robbins and the
Court properly interpreted the statute in Robbins II, in granting relief.4
Of course, if the State had not sought rehearing and the Court not granted the
motion, there would have been no need to amend 11.073. This is because the Court’s
opinion in Robbins II properly interpreted the statute. However, in light of the
disagreement among the judges of this Court and the pendency of the State’s request
for a do-over, the Legislature once again stepped in to remove any ambiguity in the
statute, real or imagined.
The original enactment of 11.073 was a similar move by the Legislature in
Judge Meyers dissent, in which no other member of the Court joined, concludes that the
3
Legislature exceeded its authority in enacting Art. 11.073.
4
The Senate Bill Analysis states: “H.B. 3724 simply codifies the recent court decisions and
clarifies that the legislative intent in enacting Article 11.073 included not only discredited
science but also the testimony that was based on discredited science.”
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 6
response to this Court’s denial of relief in Robbins I. When the Court denied relief om
Robbins I, the Legislature responded by finally enacting Art. 11.073 to ensure that
Robbins, and those similarly situated, would have a vehicle for post-conviction relief.
The judges on the court have expressed differing opinions on the legislative intent in
the original enactment of 11.073. Nevertheless, there can be no real doubt that the
Robbins I decision was the “tipping point” behind the enactment of the statute. See
Robbins II, Judge Cochran concurring. Robbins II at p. 19.
b. Hair Review
The second major event that has occurred since the State sought rehearing is a
further national awareness of the problem of both bad science and bad scientists in
criminal cases. In April of this year, the U. S. Justice Department and FBI issued its
preliminary assessment of the review of hair comparison cases over a 20 year period
before 2000. See Washington Post, April 18, 2015, “FBI admits flaws in hair analysis
over decades.”5 The federal government’s own conclusion was that 95% of these
cases involved incorrect and invalid testimony. While it is yet to be determined to
what extent this testimony was deliberate false testimony, as opposed to a
misunderstanding of the science, there is no question that many defendants, in Texas
5
http://www.washingtonpost.com/local/crime/fbi-overstated-forensic-hair-matches-in-nearly-all-
criminal-trials-for-decades/2015/04/18/39c8d8c6-e515-11e4-b510-962fcfabc310_story.html
(last visited May 27, 2015). See also, FBI/DOJ Microscopic Hair Comparison Analysis Review,
Press Release,
http://www.fbi.gov/about-us/lab/scientific-analysis/fbi-doj-microscopic-hair-comparison-analysi
s-review (last visited, May 27, 2015)
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 7
and elsewhere, were convicted based on this invalid scientific testimony. There is also
a question of how much of this invalid testimony is attributed to a scientific witness
misunderstanding and misstating the then-current science and how much is based on
new scientific techniques. Nevertheless, it is clear that the interpretation embraced by
the dissenting judges in Robbins II, and advanced by the State on rehearing, could
well result in numerous habeas applicants being denied relief under 11.073, on the
theory that a scientist giving incorrect testimony, and later, upon further study and
review, realizing the testimony was not correct, does not provide a basis for relief
under 11.073.
c. Ex Parte Keller
The third significant event since the granting of the State’s motion for rehearing
is the Court’s opinion in the Frances and Daniel Keller cases. Ex parte Daniel Keller,
No. WR-36,232-02 (May 20, 2015) (not designated for publication); Ex parte Frances
Keller, No. WR-36,864-02 (May 20, 2015) (not designated for publication). In Keller,
the Court granted post-conviction relief based on the presentation of false evidence.
Specifically, the Court found the following:
“Dr. Mouw testified at Applicant’s original trial that he observed
physical indications of sexual abuse in the complainant. Dr. Mouw now
has recanted that trial testimony. The trial court held a hearing during
which Dr. Mouw testified that his testimony at Applicant’s initial trial
was misleading and that he now believes that what he believed to be
trauma was actually a normal variation in the complainant’s anatomy.”
Keller, slip opinion at 1-2.
This is, in fact, precisely the same situation in which the Court denied relief in
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 8
Robbins I. In Robbins I, Dr. Moore’s false and misleading testimony was that the
cause of death was asphyxia related compression of the chest. She later re-evaluated
her testimony and concluded that her previous testimony was wrong. As Judge
Johnson explained in her concurring opinion in Robbins II:
“At the time of the original trial, Dr. Moore had only 18 months
experience as an associate medical examiner and had been cited for
defective and improper work. With eight more years experience, she
testified that she believed that the cause of the child’s death could not be
determined.” Robbins II, at p. 12.
There is no principled distinction to be made between the facts of Robbins I and
those in Keller. Both involve a medical doctors reconsideration, and ultimate
recantation of their expert trial testimony.6
To grant relief in a situation mirroring that of Robbins I, yet denying the same
relief to Robbins, calls into question whether Robbins received a fair evaluation of his
claim in his first writ.7 Robbins has asked the court to reconsider, on its own motion,
its order denying relief in Robbins I. The Keller case is certainly a compelling reason
for the Court to do so.
d. National Attention
Additionally, the enactment of Art. 11.073, as well as the decision in Robbins
6
See also Lindell, “1992 Sex Case Over Day Care Tossed” (www.statesman.com May 21, 2015)
(last visited May 27, 2015) (“Dr. Michael Mouw later admitted that inexperience led him to
misidentify normally occurring conditions as evidence of sexual abuse in a 3-year-old girl.”
7
It is important to note that Judge Price, who retired from this Court on December 31, 2014,
supplied the fifth vote joining Judge Meyers’ majority opinion in Robbins I.
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 9
II, has drawn nationwide attention and praise. In fact, Art. 11.073 was the first statute
of its kind, one which statutorily recognized that presentation of bad scientific
testimony has resulted in invalid and unsupportable convictions and providing a
remedy for this injustice. The Court’s opinion in Robbins II was widely disseminated
and discussed. Other states are looking to Texas, and how Texas interprets this
important provision of writ law will influence and guide other states.
e. Legislative Intent
In his lead opinion for the Court in Robbins II, Judge Womack found the
language of Art. 11.073 to clearly apply to the medical examiners reconsideration of
her faulty opinion that the child’s death was a homicide caused by asphyxia by
strangulation. Regarding the medical examiner, Judge Womack stated:
“Her new opinion that the cause of death is ‘undetermined,’ which the
applicant argues is the ‘change in scientific knowledge,’ is also an
inference or assertion supported by appropriate validation based on the
scientific method. Moore’s revised opinion on the cause of death
satisfies the requirements to be called ‘scientific knowledge,’ and thus
falls within the language of article 11.073. Moore’s opinion labeling
cause of death as ‘undetermined’ was not available at the time of trial
because her scientific knowledge has changed since the applicable trial
date.” (Robbins II at p. 10)
In reaching this conclusion, Judge Womack’s lead opinion rejected the State’s
contention that there was an ambiguity in the statute. Rather, the plain meaning of the
statute was found to cover the facts in this case.
In contrast to Judge Womack, Judge Keasler’s dissent argued that legislative
history showed a legislative intent to exclude the Robbins case from the reach of
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 10
11.073. Judge Keasler’s dissent asserted:
“Article 11.073's legislative history suggests that its aim is to provide an
avenue of relief for those convicted on science or scientific methodology
subsequently found to be unsound, not an individual expert’s changed
testimony when the underlying science or methodology of that opinion
remains valid.” (Robbins II at 24)
While the majority opinion in Robbins II was correct in concluding that a resort
to the legislative history is not necessary based on a clear application of the language
of 11.073, nevertheless, it is obvious that the Legislature believed that it was
providing a statutory remedy for the denial of relief in Robbins I. In fact, Judge
Cochran, in her concurring opinion in Robbins II, made it clear that the court’s
decision in Robbins I was the “poster child for enactment of Article 11.073.”
(Robbins II at p. 13).
Judge Cochran further wrote in Robbins II:
“I join the majority opinion. I write separately to respectfully disagree
with the State’s contention that the plain language and legislative history
of Article 11.073 ‘demonstrate a legislative intent to provide a remedy
when there is a generally accepted scientific advance or breakthrough in
a discipline of forensic science,’ rather than a change in the State’s
scientific expert’s opinion. I think that providing relief from ‘bad’
scientific testimony and righting the wrong of Robbins was ‘the tipping
point’ for passing the statute. (Robbins II at p. 13)
...
Dr. Moores later re-evaluation of her opinion - putting aside advocacy
for one party and seeking more information to reach a more accurate
result - is the hallmark of ‘good’ scientific methodology:
Scientists continually observe, test, and modify the body of
knowledge. Rather than claiming absolute truth, science
approaches truth either through breakthrough discoveries or
incrementally, by testing theories repeatedly.
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 11
It is not surprising, then, that the Texas Legislature would authorize this
court to review convictions based upon an expert’s ‘scientific
knowledge’ that the expert has since repudiated or contradicted based on
her further testing, review, and experience. Indeed, what would not
make sense is for the Legislature to be concerned about the reliability of
general fields of forensic science, but unconcerned about the reliability
of a forensic scientist’s specific testimony. Regardless of whether a
conviction is based on an unreliable field of science or unreliable
scientific testimony, the result is the same; an unreliable verdict that
cannot stand the test of time. It is built upon the shifting sands of ‘junk’
science or a ‘junk’ scientist, and it is the purpose of Article 11.073 to
provide a statutory mechanism for relief and a retrial based upon ‘good’
science and ‘good’ scientific testimony.” (Robbins II at p. 21)
Judge Johnson’s concurring opinion in Robbins II further explained that, “‘Bad
science’ and ‘bad scientists’ are inseparable.” (Robbins II at p. 12)
She went on to conclude:
“Because evidence is what is presented at trial by a witness and is
therefore limited by the personal knowledge of that witness, logically the
statute must be intended to address the personal knowledge of scientific
witnesses.” (Robbins II at p. 12)
As discussed in the various opinions, this statute was introduced in both the
2009 and 2011 legislative sessions but did not become law. The major change in the
Texas landscape on new scientific evidence between the end of the 2011 legislative
session and the 2013 legislative session was the Court’s opinion in Robbins I. This
5 - 4 decision caused a stir statewide, as well as in the Legislature. The question that
the Legislature was faced with was whether Texas law would provide a remedy for
someone in Robbins’ situation.
Clearly, the Legislature took up the challenge and intended Art. 11.073 to apply
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 12
to Robbins and others in this position. The legislative history, including the testimony
presented to the relevant committees, makes this obvious. Moreover, the House
Research Organization Bill Analysis of SB344, which became Art. 11.073, stated the
following:
“Recent case law and judicial opinion have identified weaknesses in the
current habeas corpus statute, noting issues that include the absence of
statutory grounds upon which to grant relief, the speed of changing
science that serves as the foundation of a conviction, and technical
testimony that may change with scientific discovery. In one case,
recanted testimony by a medical examiner established the basis of the
state’s case with respect to the cause and manner of death, without which
it would not have obtained a conviction. The Texas Court of Criminal
Appeals voted against granting a new trial, with the majority finding no
path to habeas relief under current law. The question was raised as to
how the criminal justice system should address scenarios in which
scientific experts sincerely thought something was true at the time they
testified, but the science and the experts’ understanding and opinions had
changed.”
In her concurrence Robbins II, Judge Cochran aptly summed up the legislative
history as follows:
“It cannot be doubted that the Legislature had this very case in mind
when it debated and enacted what is now Article 11.073. And, during
the legislative session, Senator Whitmire told the Texas Tribune that
‘several recent Court of Criminal Appeals decisions may make [SB 344]
more likely to pass.’ The Robbins and Henderson cases raised ‘a novel
and difficult issue for the criminal-justice system’:
When scientific experts honestly and sincerely thought ‘X’
was true at the time they testified, but the science has
changed or the experts’ understanding of the science has
changed and their opinions have changed, what cognizance
of that change should the criminal justice system take long
after a person has been convicted.”
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 13
In Robbins, this Court chose finality over accuracy; in Henderson we did
the opposite, and in 2013, the Texas Legislature also chose accuracy over
finality by enacting Article 11.073. (Robbins II at p. 20)
Moreover, Judge Johnson noted, in her concurring opinion in Robbins II:
“The various positions on statutory interpretation seem to agree that the
legislative history indicates that the intent of this statute is to provide
relief to those who were convicted on science or scientific methodology
that is now known to be unsound.” (Robbins II at p. 11)
Her concurring opinion concluded that,
“The legislature has made it clear that advances in DNA technology may
be the basis for re-examining convictions. Advances and changes in
other forms of scientific knowledge, and thus in scientific testimony
from individuals, should also be available as bases for re-examination of
convictions.” (Robbins II at p. 13)
Certainly, as the bill analysis stated, and as Judges Cochran and Johnson
explained, Art. 11.073 was expressly designed to address Robbins. Any suggestion
to the contrary is belied by the well documented legislative history.
f. Texas Leads The Way
That the Legislature chose to address the gap in the law exposed by the first
Robbins’ opinion is not surprising.8 As Judge Cochran stated in her concurrence in
Robbins II, “Over the past decade, Texas has been a national leader in addressing
wrongful convictions and recognizing how bad science can lead to wrongful
8
Unreliable or improper forensic science has appeared in more than 50% of DNA exonerations.
See The Innocence Project, Understand the Causes: Unreliable-Limited Science
(http://www.innocenceproduct.org/understand/Unreliable-Limited-Science.php.) The Tim Cole
Advisory Commission on Wrongful Convictions recognized this by recommending that Chapter
11 of the Code of Criminal Procedure be amended to address changing scientific evidence.
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 14
convictions.” (Robbins II at p. 13)
The public policy interests of the state have been expressed repeatedly by the
Texas Legislature. For instance, the Legislature, with the support and signature of
Governors Bush and Perry, has passed numerous laws designed to address the
problem of wrongful convictions. These include Chapter 64 of the Code of Criminal
Procedure concerning DNA testing, the amended Art. 39.14 (The Michael Morton
Act) concerning discovery in criminal cases, Art. 38.43 of the Code of Criminal
Procedure concerning retention of biological evidence, Art. 38.01 concerning the
establishment of the Texas Forensic Science Commission, Art. 38.20 concerning
photographic and live lineup procedures and Art. 38.141 requiring corroboration of
the testimony of an undercover informant. Art. 11.073 is another piece of legislation
expressing the pro-active approach taken by the State of Texas to address these issues.
Additionally, the Texas Legislature created the Tim Cole Advisory Commission on
Wrongful Convictions to review the causes of wrongful convictions and recommend
legislative solutions. In just the last few days, the Texas Legislature enacted H.B. 48,
which establishes the Tim Cole Exoneration Commission to study the causes of
wrongful convictions.
Judge Cochran’s concurring opinion also recognized the National Academy of
Science Report that criticized the scientific basis for forensic testimony as a factor
leading to the enactment of 11.073. (Robbins II at p. 14)
This Court has also addressed these issues. In addition to the numerous cases
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 15
reversing convictions based on new evidence of innocence, the Court formed the
Texas Criminal Justice Integrity Unit. This group was tasked with the job of
examining and studying the causes of wrongful convictions. The Court has also
addressed these issues in opinions in cases such as Tillman v. State, 354 S.W.3d 425
(Tex. Crim. App. 2011) (eyewitness identification); Winfrey v. State, 323 S.W.3d 875
(Tex. Crim. App. 2010) (dog sniff lineups); and Ex parte Henderson, 384 S.W.3d 833
(Tex. Crim. App. 2012) (child head injuries).
The Court’s opinion denying relief in Robbins I was an outlier from this
forward march by the Texas courts and Legislature. The Legislature was faced with
a choice of addressing this gap in the law or allowing this opinion to stand in contrast
to the clear trend of Texas law. The Legislature chose to rectify what it perceived to
be the unfairness of Robbins I, and the potential effect of the Court’s opinion on other
cases. Thus, Art. 11.073 became part of the jurisprudence of the State.
The enactment of Art. 11.073 has garnered national attention and praise for
Texas. On February 28, 2014, in the Atlantic Magazine, a story was published
entitled, “In Texas, A New Law Lets Defendants Fight Bad Science.” This story
describes Art. 11.073 as, “[A] ground breaking new Texas law, the only one of its
kind in the nation, which recognizes that science can get it wrong.”9 The article
quotes Mike Snedeker, President of the non-profit National Center for Reason and
9
http://www.theatlantic.com/national/archive/2014/02/in-texas-a-new-law-lets-defendants-fight-
bad-science/283895/ (Feb. 28, 2014) (last visited May 27, 2015).
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 16
Justice, describing the new law “as elegant and straightforward and “phenomenally
important, not the least because it clarifies and builds on existing due process rights.”
Referring to the law, Snedeker described Texas as a “beacon of legal progress.” In
fact, Texas is a beacon of legal progress, and Art. 11.073 is just one of the many ways
that this is true.
CONCLUSION AND PRAYER FOR RELIEF
By enacting Art. 11.073, the Texas Legislature has stated its position that
discredited and unreliable science and scientists should not be a basis to hold a man
in prison. A fair and common sense application of Art. 11.073 to Neal Robbins’ case
must result in the granting of relief in this case.10 That is what the Legislature
intended and what the law directs. For this reason, Amicus Curiae, The Innocence
Project of Texas, urges the Court to grant the requested relief and vacate the
conviction in this case.
Respectfully submitted,
/s/ Gary A. Udashen
GARY A. UDASHEN
Bar Card Number 20369590
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road, Suite 250
Dallas, Texas 75201
The granting of Robbins’ motion for the Court to reconsider its decision in Robbins I on its own
10
motion is an alternative ground for vacating his conviction. This argument is also meritorious,
particularly in light of the recent Keller opinion granting relief to Daniel and Frances Keller. Ex
Parte Moussazadeh, 361 S.W.3d 684, 687 (Tex. Crim. App. 2012).
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 17
(214) 468-8100
(214) 468-8104 Fax
BOARD PRESIDENT
INNOCENCE PROJECT OF TEXAS
Attorney for Amicus Curiae
The Innocence Project of Texas
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that a true and correct copy of the foregoing
Amicus Curiae Brief on Court’s Consideration on Rehearing by the Innocence Project
of Texas was mailed to the Montgomery County District Attorney’s Office, 301 North
Thompson, Conroe, Texas 77301, and Brian Wice, Attorney for Applicant Neal
Hampton Robbins, The Lyric Centre, 440 Louisiana, Suite 900, Houston, Texas
77002-1635, on this the 28th day of May, 2015.
/s/ Gary A. Udashen
GARY A. UDASHEN
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 18
CERTIFICATE OF COMPLIANCE
Pursuant to Tex. R. App. Proc. 9.4(e)(i)(2), undersigned counsel certifies that
this brief complies with the type-volume limitations of Tex. R. App. P. 9.4(e)(i)(2).
1. This brief complies with the type-volume limitation of Tex. R. App. P.
9.4(e)(i)(2) because this brief contains 4,324 words, excluding the parts of the brief
exempted by Tex. R. App. P. 9.4(e)(i)(2).
2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e)
and the type style requirements of Tex. R. App. P. 9.4(e) because this brief has been
prepared in a proportionally spaced typeface using Wordperfect X5 in 14 point Times
New Roman.
/s/ Gary A. Udashen
GARY A. UDASHEN
Amicus Curiae Supplemental Brief by the Innocence Project of Texas - Page 19
Robbins, Neal Hampton
Combined Opinion