Does the New Texas “Junk Science” Law Apply to an Individual Expert Who Recants Previous Testimony?

Neal Robbins was convicted in the 1998 death of his girlfriend’s daughter. Robbins appealed after Texas passed a 2013 statute allowing for convictions to be overturned if “junk science” was used to convict the defendant. The question before the court was whether the law applied to whole fields that have since been discredited (such as bite-mark testimony), or if the law can apply to an individual expert who recants their testimony after a defendant is convicted. The medical examiner in this case originally labeled the victim’s death a homicide due to asphyxiation, but years later, she admitted that she should have labeled the cause of death as “undetermined.” The Texas Court of Criminal Appeals ruled in favor of the defendant, granting him a new trial.

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  1. Ironically, though, the opinion in Robbins doesn’t answer the question in the title of the post. As Judge Alcala’s concurrence observes, the effect of the court’s decision was to revert to the court’s decision on the petitioner’s claim under the *old* 2013 statute. The result is good for Robbins – the CCA had ruled that the 2013 statute did broadly apply to recanted testimony – but meaningless for future petitioners who will be proceeding under the 2015 version of the statute. That might seem an academic point, since the 2015 version aimed to codify the old Robbins decision and really, really, *really* make clear that the legislature wanted the writ to apply to changed testimony. But the composition of the CCA has changed, and some think that the result in Robbins lets the 2013 dissenters kick the can down the road and try to marshal a majority for a more constrained interpretation of the new legislation. So stay tuned for the S.A. Four.


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