Cell Tower Records Criminal Defense

Murder Case Hinges on the Privacy of Cell Tower Records

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Was it an Unlawful Warrantless Search Under the 4th Amendment for the DA to Obtain Cell Tower Records From a Third Party and Use Them Against a Defendant Charged with Murder?

Ford v. State (2015) | San Antonio Murder Mystery

JCell Tower Records Criminal Defenseon Ford and Dana Edwards dated off and on for two years in the small town of Alamo Heights, Texas. After a long break-up, the former couple saw each other at a friend’s New Year’s Eve party. The group of friends drank heavily and played “Apples to Apples,” an interactive game that required the participants to reveal their thoughts on personal topics. During the game, the subject of marriage came up and Ford was singled out about his on-again-off-again relationship with Edwards. Angry, Ford left the party before everyone else.

The next day, Edwards’s parents were expecting her in Fredericksburg, but she never showed. Worried, her parents drove to her condo, where they found her dead. Because she sustained lacerations and trauma to her head, the police opened up a murder investigation.

The State Gathers Evidence

On January 2nd, Ford volunteered to give a statement. In his statement, Ford said he left the party around 11:30 pm, went home, and fell asleep. Ford said that his new cell phone had been in his possession the entire night.

The investigators obtained video footage of the streets bordering Edwards’s condo, footage that conflicted with Ford’s official statement. At 11:24 pm, the camera captured a white SUV, similar to Ford’s vehicle, turn into the victim’s condo complex. At 1:00 am, Edwards’s car entered the complex. At 3:16 am, with the headlamps turned off, the white SUV exited the complex. No one could definitively say the white SUV belonged to Ford, as the license plate and registration stickers could not be determined because of the quality of the video.

A week later, the San Antonio District Attorney’s Office filed an application under Article 18.21 § 5(a) of the Texas Code of Criminal Procedure, and in compliance with Communications Act, to obtain Ford’s historical cell-site-location records from AT&T Wireless.

Ford’s Case Goes to Trial

At trial, a radio network engineer from AT&T Wireless testified about the records. The engineer said that AT&T can tell where a cell phone is located by examining the sector information. He explained, “when a person sets up a call, receives a call, or sends a text, the person does so in communication with…sectors in the cell-phone network…[which] enables [AT&T] to look up the records for a particular phone number…determin[ing] [the] cell phone’s proximity to a cell…tower.” Ford v. State, 444 S.W.3d 171, 190 (Tex. App.—San Antonio 2014). This is also true when the phone is not being actively used, as “unanswered texts and calls…automatic downloads….cause the [phone] to…ping the network to alert the network that the [phone] is in a particular…area.” Id.

According to AT&T, Ford’s cell records indicate that the numerous pings place Ford at the party, then at the victim’s condo complex and finally, at his home. The “ping” time frame also matches the timestamps from the camera footage for the unknown white SUV. Id.

The jury found Ford guilty of murder, sentencing him to forty years in prison. Ford appealed, and the court of appeals affirmed the verdict and sentence, relying upon the third party doctrine. Justice Chapa dissented in the court of appeals case, stating, in a nutshell, that Ford retained a reasonable expectation of privacy in his physical movements and location; he did not voluntarily surrender his expectation of privacy; and because the State did not secure a warrant before obtaining the records, Ford’s Fourth Amendment rights were violated. Ford appealed to the Criminal Court of Appeals (“CCA”).

The Big Issue | Privacy of Cell Tower Records

Did the State of Texas’ warrantless acquisition of historical cell-site-location information—recorded by a 3rd party cell-phone service provider—violate the Fourth Amendment? Did Ford have a reasonable expectation of privacy in his movements and location?

What does the law say about the expectation of privacy in cell phone records? What is the Third Party Doctrine?

The Fourth Amendment Guarantees , “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend. IV. A person may appeal a verdict under a privacy theory if (1) he has a subjective expectation of privacy in the place or object searched, and (2) society…recognize[s] that expectation as reasonable. State v. Granville, 423 S.W.3d, 399, 405 (Tex. Crim. App. 2014).

The Third Party Doctrine allows for acquisition of information revealed to a third party (such as a cell phone company or a bank). Case law reflecting this doctrine suggests that information that must be disclosed [in the normal course of business] for the phone company to provide the requested service, is not off-limits to law enforcement and is not a violation of the Fourth Amendment. However, courts across the United States remain divided on this issue.

The Texas Court of Criminal Appeals Weighs in on Cell Phone Records and the Third Party Doctrine

Here, the CCA says that the DA’s office did not violate Ford’s Fourth Amendment rights because Ford had no legitimate expectation of privacy in records held by AT&T, records kept in the normal course of business, pointing to his location and movements in the past. AT&T uses the records for its own business purposes to improve network functionality. Moreover, phone service providers are required, by the FCC to locate a cell phone when a 911 call is placed. In re Application (Fifth Circuit), 724 F.3d at 611-12. Therefore, “The type of non-content evidence, lawfully created by a third-party telephone company for legitimate business purposes, does not belong to defendant[s], even if it concerns [a defendant].” United States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) . Acknowledging that Fourth Amendment claims may survive with in the case of GPS devices, or in long-term monitoring of individuals, the CCA affirms, holding, “In the circumstances [of this case], we do not see a jurisprudential reason to stray from the third-party doctrine.”

What could Ford v. State mean for you?

Generally speaking, your cell phone records, by way of the third-party doctrine, are subject to review by law enforcement and could be used against you in criminal proceedings in Texas. The CCA is saying that a reasonable person does not have a reasonable expectation of privacy in his or her cell tower records.

Fort Worth violent crimes attorneys

Burglary of a Former Residence Leads to Capital Murder

By | Burglary, Murder | No Comments

Felony Murder Conviction is Affirmed on Appeal

Fort Worth violent crimes attorneysGardner v. State (14th Court of Appeals, Houston 2015)

Herbert Gardner and his ex-girlfriend dated for four years and lived together in his ex-girlfriend’s home. When the couple broke up on November 2, 2012, Gardner moved into a hotel. On December 23, 2012, his ex-girlfriend was found murdered in her home and Gardner was found nearby, badly injured. On the way to the hospital Gardner stated to the police officer, “I should not have shot her.” A jury found Gardner guilty of an elevated charge of capital murder, and the trial court sentenced him to mandatory life in prison.

Gardner appealed to the Court of Appeals, arguing (1) that the evidence was insufficient to prove that he murdered his ex-girlfriend in the course of committing a burglary, an aggravating factor that elevates a murder charge to a capital offense with a heavier punishment; and (2) that the evidence was insufficient to prove that when he entered his ex-girlfriend’s home, he committed or intended to commit a felony, theft, or assault, which also carries a heavier punishment in Texas. The Court of Appeals disagreed with both of Gardner’s arguments, affirming his conviction.

First, the language of the statute under which Gardner was convicted states, “A person commits burglary if, without the effective consent of the owner, he: (1) enters a building or habitation with intent to commit a felony, theft or an assault, or, (2) enters a building or habitation and commits or attempts to commit a felony, theft or an assault.”

Gardner argued that he had an equal right to possession of the property and could not be found to have entered without his ex-girlfriend’s consent because he had lived in the home for four years, that the neighbors saw him in the home on a regular basis, and that he used the residence as home address on his driver’s license. The State argued that Gardner lost his right to possession before the murder because he moved into a hotel, his name was not on the property deed, that the front window of the home was broken and blood-stained with Gardner’s blood, that his vehicle registration reflected a different address, and that there were not any items that suggested a male was living in her home at the time of the murder.

In assessing the sufficiency of evidence, the Court of Appeals must view all evidence in the light most favorable to the verdict to determine whether the trial court could have found the elements of the offense beyond a reasonable doubt. Here, the Court of Appeals agreed with the State, that there was indeed sufficient evidence for a rational jury to conclude that Gardner no longer lived with his ex-girlfriend and no longer had consent to enter the home at the time of the murder. Because the evidence was sufficient to prove the unlawful entry element of burglary, the Court of Appeals overruled Gardner’s first argument.

Second, the language of the statute under which Gardner was convicted states, “A person commits capital murder if he intentionally or knowingly causes an individual’s death while in the course of committing or attempting to commit burglary.” Gardner argued that the State wrongly used his murder to establish the murder requirement for capital murder and to establish the felony component of the underlying burglary. The State argued that the Court of Criminal Appeals—the court of last resort for criminal matters in Texas— has held in several cases that a murder occurring after a break-in can indeed serve as both the basis for the murder charge and the underlying felony required for burglary.

Under the legal doctrine of Stare Decisis, courts must follow the precedent established by the higher court from cases the higher court has heard from previous years. In criminal appeals, these prior cases serve as an example for lower courts to follow when making decisions about upholding or overturning convictions. Here, the Court of Appeals overruled Gardner’s second argument because the court is bound to follow precedent set forth by the Court of Criminal Appeals. The State could use Gardner’s murder to establish the murder requirement for capital murder and to establish the felony component of the underlying burglary in order to elevate the murder to capital murder, which incurs a higher penalty in Texas.

In criminal appeals, the court is primarily responsible for ensuring that proper form and procedures are followed in the trial courts, rather than determining the facts of the case. The trial court is tasked with determining and recording the facts of the case, to be used later on appeal if necessary.

A criminal defense attorney in Fort Worth will understand the subtle nuances of the statutory language found in the Texas Code of Criminal Procedure and in legal doctrines, such as Stare Decisis. As you can see from the case above, statutory language and legal doctrine have a direct impact on establishing the elements of a crime, elements that may determine the severity of the penalty in the punishment phase of a trial. This essay does not replace legal counsel or advice.

Free Consultation with a Dedicated Team of Fort Worth Criminal Defense Attorneys

Barnett Howard & Williams PLLC is a proven and dedicated criminal defense law firm. With offices in Fort Worth, Keller, and Grapevine, our attorneys stand ready to defend your liberty and your future. Call our office at (817) 993-9249 to arrange a Free consultation of your criminal case today. Do not wait until it is too late.

DNA Innocence

The Last Man Exonerated – Kerry Max Cook

By | DNA, Murder | No Comments

DNA InnocenceI usually do not repost articles that others writers send to my email, but I decided to make an exception for this one.  Reposted below is a compelling article written by Michael Hall with Texas Monthly, regarding the current plight of Kerry Max Cook, a man who hopes to obtain a complete exoneration for a murder that he did not commit (as later demonstrated by DNA evidence).  You can either read the story below, or see the original article HERE.  You can also check out an updated Article by Michael Hall HERE.

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Kerry Max Cook walked off Texas’s death row in 1997, but earlier this week he filed two motions in the 241st District Court in Smith County that he hopes will finally clear his name. Cook (pictured above) and his Dallas lawyers, working with the New York-based Innocence Project, petitioned for post-conviction DNA testing on untested evidence he is certain will show once and for all that he is innocent of killing Linda Jo Edwards in Tyler in 1977. He also asked to have the DNA motion considered by a judge from outside Smith County, where he claims he was a victim of “the most well-documented and notorious instance of prosecutorial misconduct in the annals of Texas jurisprudence.”

Now would seem to be a good time to file these motions. Since 2000, four dozen Texans have been exonerated, most by DNA evidence. Recently we’ve seen several high-profile cases in which men sent to prison—including death row—were exonerated and freed, to great fanfare. Timothy Cole, convicted of rape in Lubbock in 1985, was exonerated posthumously in 2009 after a court of inquiry found him innocent. Anthony Graves, a former death row inmate, was freed in 2010 after a special prosecutor found his trial prosecutor had “handled this case in a way that would best be described as a criminal justice system’s nightmare.” Michael Morton, convicted of killing his wife in 1987, was freed in October after tests revealed his wife’s blood and another man’s DNA on a bandana near the crime scene.

Cook was released when these other men were still in prison. Any yet, unlike them, he is not legally an exoneree. That’s because, even though his death sentence was overturned twice by higher courts, and even though DNA taken from the murder victim didn’t match him, when prosecutors were preparing to put him on trial for a fourth time, Cook pleaded no contest instead of not guilty. Thirteen years later, his murder conviction is still on his record.

Why did Cook plead no contest to a murder he didn’t commit? Good question. Cook’s case is a strange one, one of the strangest in Texas history. He was arrested in June 1977 for the rape and murder of Linda Jo Edwards, who had been stabbed, beaten, and mutilated in her apartment. Her roommate told of seeing a man at the apartment whom she assumed was James Mayfield, a married man with whom Edwards had been having an affair. But the affair had ended three weeks before the murder. Police instead zeroed in on Kerry Max Cook, who lived in the same complex and whose fingerprints were found on a patio door of the apartment. Cook said he was innocent.

The prosecution made a strong case at Cook’s first trial in 1978. A police detective testified that his fingerprints could actually be dated as having been left there within hours of the murder. The roommate who originally thought the killer was Mayfield now said it was Cook. A jailhouse snitch said Cook confessed to him that he’d killed Edwards. And a gay hairdresser named Robert Hoehn said that on the night of the murder he and Cook had watched the movie The Sailor Who Fell From Grace With the Sea; Hoehn said he had performed sex acts on Cook, who also had masturbated during a scene involving the torture of a cat. The prosecution’s theory was that Cook, aroused by the torture scene, had rushed out to rape, kill, and mutilate Edwards, a total stranger. Cook, who says he knew Edwards and had visited her apartment by invitation (thus accounting for the prints), was found guilty, convicted, given the death penalty, and sent to death row.

Ten years later, stories in the Dallas Morning News began alleging serious improprieties at the original trial. For example, the snitch admitted that he had lied as part of a deal with prosecutors (his pending murder charge was reduced to involuntary manslaughter in exchange for his testimony), and the detective’s testimony about being able to tell the age of fingerprints was shown to be highly misleading, if not downright absurd. In 1991 Cook’s sentence was overturned on a technicality and sent back to the trial court.

By this point, the state’s case was in the hands of a tough prosecutor named Jack Skeen, who had been elected Smith County DA in 1983. Cook had found his own advocate in Jim McCloskey of Centurion Ministries, a New Jersey group that helps the wrongly convicted. Centurion did some research and found four dozen people who knew Mayfield, the man Edwards had been having an affair with; none had ever been interviewed by police. McCloskey became convinced of Cook’s innocence and wrote a report titled “Why Centurion Ministries Believes Jim Mayfield Killed Linda Jo Edwards.”

Cook’s second trial was moved to Williamson County in 1992, but it ended in a hung jury and a mistrial. By this point other evidence that suggested prosecutorial misconduct had been revealed—the state hadn’t turned over evidence that Mayfield’s teenaged daughter had repeatedly threatened to kill Edwards in the weeks before her death. The state also withheld evidence that Cook and Edwards did indeed know each other and that Hoehn had originally told the grand jury that he had not had sex with Cook (who, he had also said, didn’t pay any attention to the movie). Finally, the state hadn’t revealed a written statement from the detective who had testified about the age of the fingerprint in which he said he had told prosecutors this opinion was unsound and couldn’t be backed up by any science. Still, he stated, prosecutors pressed him to give it, and he did, to devastating effect.

At trial number three, in 1994, even without the testimony of the snitch or the detective regarding the age of the fingerprints, the state was allowed to use the testimony of Hoehn, who had recently died. Cook was again found guilty and again given the death penalty.

In 1996 Cook finally got his first vindication. The Texas Court of Criminal Appeals reversed the latest conviction, pointing to the massive official misconduct. “Prosecutorial and police misconduct has tainted this entire matter from the outset,” the majority opinion declared. Cook made bail in 1997, but the state prepared to try him again. Skeen, who was elected Prosecutor of the Year by the State Bar of Texas, remained convinced of Cook’s guilt.

In an attempt to head off a fourth trial, Skeen’s office offered Cook a deal: plead guilty, be sentenced to time served, and go home. Cook refused. He was innocent, he swore. In early 1999, Edward’s underwear was sent to a DPS lab for modern forensic testing. On February 5, the lab confirmed the presence of semen. Six days later a hopeful Cook gave a blood sample. The next day, before the results of the DNA test came back, the DA’s office made another offer: a no contest plea, in which he would maintain his innocence while acknowledging that witnesses against him “would testify sufficiently to prove beyond a reasonable doubt” that he’d killed Edwards. Again Cook refused. On February 16, the DA came back with a final offer: a no-contest plea in which Cook would maintain his innocence while only acknowledging the evidence the state would offer to try and convict him. Cook took the deal. He didn’t want to run the risk of another trial, another guilty verdict, and another death sentence in law-and-order Smith County.

Two months later, the test results came back: the semen belonged to Mayfield—who had given a blood sample a month after the plea deal. Skeen’s office maintained that the results didn’t prove anything—after all, Mayfield had recently had a sexual relationship with Edwards, and who knew when that semen had been deposited there? Cook was still guilty. As Assistant DA David Dobbs said later, “The important thing for us was to insure that he got a conviction for murder that would follow him for the rest of his life.”

In 2003, Skeen became judge of the 241st District Court. One of Cook’s motions filed Tuesday specifically asks for his case to be tried by someone other than his former prosecutor. In this motion for recusal, Cook’s attorneys note new evidence that they say suggests Skeen failed to follow the law. In particular, in May 2011 Cook’s lawyers say they found a polygraph report on the jailhouse snitch that indicated deception during his 1977 questioning—a report that was never turned over to any of the defense lawyers, either in 1978 or 1994. Cook’s lawyers write, “the State was unquestionably obligated to provide this highly exculpatory document to the defense.”

The CCA, in its review, concluded that the improprieties in the case were confined to the original investigation, in the late 1970s. A footnote to its majority decision in 1996 reads: “We note the acts of misconduct … took place nearly 20 years ago and we do not imply any complicity in said acts on the part of the current District Attorney or current members of the Tyler Police Department.” But Judge Charlie Baird, in a separate opinion, disagreed, saying that he thought the misconduct went further: “the State’s misconduct in this case does not consist of an isolated incident or the doing of a police officer, but consists of the deliberate misconduct by members of the bar, representing the State, over a fourteen year period—from the initial discovery proceedings in 1977, through the first trial in 1978 and continuing with the concealment of the misconduct until 1992.” By that point, Skeen had been DA for nine years.

One of the more intriguing questions is whether Skeen knew the results of the DNA test before making the plea offer in 1999. In Chasing Justice, a book Cook wrote about his experience, he says that McCloskey suspected so. “I’ll tell you what I think,” Cook remembers McCloskey saying. “I think they ran a preliminary test on the semen stain and have at least got a blood type; they know you aren’t the donor.” In the DNA motion, Cook can only speculate on what happened:

Based on statements made by the District Attorney, what likely occurred between February 12 and February 16, 1999 is that an initial analysis was performed on Mr. Cook’s blood sample for purposes of comparison to the semen stain on Ms. Edwards’ clothing, which had only been provided the day before the prosecution’s offer to Mr. Cook of 40 years in prison. And in hindsight it is apparent that this initial analysis excluded Mr. Cook as the individual that raped and murdered Ms. Edwards. Just after Mr. Cook entered his no-contest plea, a local newspaper reported that, ‘[t]esting continues on a recently discovered semen stain on the dead woman’s underwear, said Skeen. But initial indications were that the new evidence would not prove helpful to prosecutors, he [Skeen] said.’ The prosecution knew that once a jury was informed that the semen from Ms. Edwards’ panties did not belong to Mr. Cook, the State would not be able to convict Mr. Cook of her rape and murder. Again, Mayfield did not submit his blood until after the plea agreement was entered, so when the prosecution made the deal with Mr. Cook they may not have known with scientific certainty who did rape and kill Ms. Edwards, but they absolutely knew who did not—Kerry Max Cook.

The intent of the DNA motion seems to be to start the ball rolling to get Cook eventually declared actually innocent. This is a tall order in Texas, especially this long after the verdict. The motion states:

Mr. Cook is factually and actually innocent of the 1977 rape and murder of Ms. Edwards and requests further DNA testing to verify and corroborate the other powerful evidence of his innocence. While previous DNA testing has already provided exculpatory evidence and established overwhelming proof of Mr. Cook’s innocence, there is a substantial volume of additional un-tested evidence that will further corroborate Mr. Cook’s innocence.

The motion is referring to things taken from the bloody crime scene that were never tested for DNA, including Edwards’ bloody blue jeans, a hair found on her body, and other biological samples taken from her bra and a knife.

One of the great mysteries of the case is why Mayfield, whose semen was found inside Linda Jo Edwards’ lifeless body, was never tried for her murder. If his DNA profile were to be found in the untested blood or hair, could Mayfield (who lives in Houston and has refused requests for interviews for 35 years now) ultimately be prosecuted? Could Cook be exonerated?

Cook’s case is a deeply tragic one. He was one of the first of the modern wave of men to be freed after years of wrongful imprisonment. And yet Cook never experienced a profound public vindication. He never got to raise his arms high as he was cheered leaving the courthouse—like Morton recently did. He doesn’t get millions of dollars in compensation from the state for those wasted years—like the others do. He doesn’t have a brotherhood of fellow exonerees—like the men in Dallas have. He isn’t even, technically, an exoneree.

“Every day I fight against the darkest depression imaginable,” he says, “because of what Smith County did to me and continued to do to me for 35 years. First there was the horror of my prison experience as an innocent man, then my fate when I was freed, which in some ways was almost as bad. I developed severe PTSD. I was forced to move five times by people who found out about my past. Kids won’t play with my son because they find out he’s the son of a man who was on death row. My wife and I–we have no insurance. I can’t get an apartment, I can’t get a real job. It’s been unbelievable. Nobody knows what it’s like. It’s like I’m behind another set of bars. I’m not free.

“I want the official exoneration. I want what Ernest Willis and Tim Cole and Michael Morton got. I deserve it. It’s my turn.”

The Importance of a Waiver to a Potential Conflict of Interest

By | Murder | No Comments

Back in June of this year the Texas Court of Criminal Appeals addressed a case involving a conflict of interest.  Criminal defense attorneys will find that conflict issues come up frequently. The writ of mandamus that the CCA heard in this case addresses conflicts of interest and provides some assurance as to what attorney’s can do to shore up any issues they may have with conflicts.

In Bowen v. State, a writ of mandamus was filed by a defense attorney representing a client on trial for Capital Murder.  A principal witness in the case against his client was a jailhouse informant who happened to also be a former client of the defense attorney.  The State moved to disqualify the attorney arguing that his ability to cross-examine his former client would be hampered because of the past representation.  At a hearing on the State’s motion to disqualify, the attorney introduced into the record signed written waivers from both his client on trial for capital murder and the witness whom he formally represented.  The trial court granted the State’s motion to disqualify the attorney.

The Court primarily looked to the Sixth Amendment as addressed by the Supreme Court in Wheat v. United States, 486 U.S. 153 (1988).  In Wheat, the Court emphasized the question of whether or not an actual conflict exists.  The Court held that trial courts must, “recognize a presumption in favor of [a defendant’s] counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict.” Id. at 164.  In absence of an actual conflict, the court gives great weight to a waiver.

The Court in the Bowen case held that the decision to disqualify the attorney was a clear interference with the defendant’s Sixth Amendment right to counsel and that there had been no evidence of the existence of an actual conflict.  Ultimately, the Court held that the waiver that had been signed was sufficient in this case to preclude disqualification of the attorney.

It is a “must” in the defense world to obtain waivers when facing potential conflicts of interest.  Even in a Capital Murder case, a waiver can be effective to disclaim the conflict.  This case does not make waivers the “end-all, be-all,” but it does show the legal world that the court will give great deference to waivers and a defendant’s Sixth Amendment right to the counsel of their choice.

Ex Parte Robbins Medical Examiner

CCA Refuses to Grant New Trial in Capital Case After Medical Examiner Recants Trial Testimony and Trial Court Recommends New Trial

By | Murder | No Comments

Ex Parte RobbinsEx Parte Neal Hampton Robbins – Tex. Crim. App. , June 29, 2011

In 1999, Neal Robbins was convicted of capital murder and sentenced to life in prison for the death of his girlfriend’s 17 month-old child. The cause of death as reported by the medical examiner was asphyxiation by compression. The medical examiner testified to her theory at trial and despite contrary evidence that the compression wounds may have resulted from adult administered CPR, the jury convicted Robbins of capital murder.

In 2007, at the urging of one of Robbins’s acquaintances, the original findings of the medical examiner were reviewed by the Harris County Medical Examiner’s Office. The Deputy Chief Medical Examiner disagreed with the findings and the trial testimony of the original medical examiner. The autopsy report was then amended to reflect that the cause and manner of death was “undetermined.” Eventually, the original medical examiner was asked to review her prior findings. In a letter to the district attorney, she stated:

I believe that there are unanswered questions as to why the child died, and I still feel that this is a suspicious death of a young child. Given my review of all the material from the case file and having had more experience in the field of forensic pathology, I now feel that an opinion for a cause and manner of death of “undetermined” is best for this case.

She went on to explain that the bruises she originally equated with asphyxiation by compression could have resulted from aggressive CPR and other efforts to assist the child.

Armed with the recantation of the chief government witness, Robbins filed an application for writ of habeas corpus in June of 2007. The State did not oppose the application and recommended that Robbins be given a new trial “because his due process rights to a fair trial and impartial jury were violated.” In response, the trial court appointed yet another medical to review the evidence and offer an opinion. This time, the chairman of the Department of Pathology at Baylor College of Medicine opined that the original determination of the cause of death, as presented in the capital trial, could not be supported by the evidence.

Not satisfied with this opinion, the trial court ordered one last review by another pathologist. This last and final pathologist stated that it was her opinion that the child’s death was a homicide and that the manner of death was asphyxia by suffocation (a theory not presented at the original trial). After this finding, the State withdrew its recommendation that a new trial be granted, but agreed not to oppose the request for a new trial.

After an evidentiary hearing into the cause of the child’s death, the trial court recommended that the Texas Court of Criminal Appeals grant Robbins’s request for a new trial.

A slim majority (5-4) of the CCA was not equally convinced. Characterizing Robbins’s application as a “bare innocence claim,” the CCA explained that it must “look to see whether there is ‘clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.’”

The CCA concluded that:

[The original medical examiner] did not entirely repudiate her testimony. Although she can no longer stand by her more definite trial testimony, it remains at least possible that [the child’s] death could have occurred as [the medical examiner] originally testified. Thus, [her] re-evaluation does not void her trial testimony. The jury could have considered [her] “undetermined” opinion and still found Applicant guilty, especially in light of all of the other evidence adduced at trial. Applicant has, therefore, failed to make the requisite showing “by clear and convincing evidence that no reasonable juror would have convicted him in light of” [the medical examiner’s] re-evaluation.

Application for writ of habeas corpus is denied.

Judge Price Concurred.

Judge Cochran, joined with Judges Womack and Johnson dissented, stating:

I certainly agree [that]…applicant has not established his actual innocence-not even close. But, given the inexperienced trial and habeas judge’s legitimate and serious concerns about the impact of [the medical examiner’s] testimony at trial on the critical and hotly disputed issue of [the child’s] cause of death, I agree that applicant did not receive a fundamentally fair trial based upon reliable scientific evidence (or the honest admission that science cannot resolve the critical issue.)

Judge Alcala also dissented in a separate opinion, stating that she would grant relief because Robbins “was denied due process of law by the State’s use of false testimony to obtain his conviction.”

If only Robbins had been tried in Florida by Casey Anthony’s jury, this entire appeal could have been averted.