Court Recommends New Trial for Man Sentenced to Life in Prison for Capital Murder After Finding State’s Expert Testimony Incompetent

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


We have blogged rather extensively about the “convict at any costs” agenda which has ruled the Harris County District Attorney’s Office for the past three decades. “Convict at any costs” means the frequent use of fabricated forensic evidence, knowingly allowing perjured testimony into a criminal trial, withholding exculpatory evidence from defendants (particularly those known to be innocent), and injecting race in its death penalty decision-making.


These experiences with the Harris County District Attorney’s Office do not give rise to much hope that a District Attorney could be an example of courage. But that is precisely what we found in the recent actions of former Montgomery County District Attorney Michael McDougal, who lost his bid for re-election to Brett Ligon. Nearly 12 years ago McDougal’s office prosecuted Neil Hampton Robbins for capital murder in connection with the death of Robbins’ former girlfriend’s 17-month-old daughter, Tristen Rivet. Robbins was convicted and sentenced to life imprisonment for the toddler’s death.


Robbins’ conviction was based in large part of the testimony then Harris County Medical Examiner, Dr. Patricia Moore. We have also blogged in the past about Dr. Moore’s history of providing false or discredited testimony in child death cases. On January 22, 2010, the proverbial chickens came home to roost in the Neil Robbins case. Montgomery County District Court Judge K. Michael Mayes ruled that Dr. Moore had given inept testimony during Robbins’ May 1998 murder trial. Judge Mayes’ concluded the former medical examiner was too incompetent “to offer objective and pathologically sound opinions on the cause and manner of [the] death [of Tristen Rivet].”


In May of 2007 Dr. Moore tried to clean up the testimony she had given in the Robbins case by reviewing her findings that Tristen Rivet’s death was a homicide. Based on unidentified information she said she had not reviewed in her original examination of Rivet’s body (after which she found the toddler’s death was a homicide caused by a compressed skull), Dr. Moore changed her “cause of death” finding from homicide to “undetermined.”


Robbins’ attorney, Brian Wice (who has an admirable record of tirelessly working for the wrongfully convicted), filed a writ of habeas corpus seeking a new trial in June of 2007. D.A. McDougal could have turned a cold shoulder to Dr. Moore’s 2007 revelations that she lied under oath when he testified against Robbins. He had not participated in and, in fact, knew nothing about Dr. Moore’s 1998 false testimony. In fact, Judge Mayes’ ruling would ultimately point out that McDougal’s office at most had only “unwittingly sponsored” Dr. Moore’s testimony. That ruling effectively exonerated the district attorney’s office of any wrongdoing in connection with Dr. Moore’s testimony. Most prosecutors would have let the matter end there.


But that was not good enough for Mike McDougal. It’s hard for an honorable man to walk away from the truth, particularly if that truth could possibly free an innocent man who was wrongfully sent to prison because someone lied under oath during a trial for which he was responsible. That kind of integrity is a rare commodity in the prosecution profession. In fact, some “convict at any costs” prosecutors would say that McDougal dishonored the prosecution profession by cooperating with a convicted felon’s motion for a new trial.


We could not disagree more. What Mike McDougal did was an example of pure courage. He placed the interest of individual justice above the interests of the prosecutorial profession. He swore an oath when he became Montgomery County District Attorney to zealously protect the interests of justice, and unlike many prosecutors, McDougal understands that oath entailed more than convicting and sending people to prison. It meant prosecuting the guilty, fulfilling the demands of the victim’s for justice, and to protecting the innocent—including a convicted murderer sent to prison for the rest of his life based on false testimony.


Current Montgomery County District Attorney Brett Ligon, who now opposes the request, made it immediately clear after Judge Mayes’ ruling that he would fight the recommendation for a new trial for Robbins with the argument that Robbins’ trial satisfied all the due process standards necessary for a fair and impartial trial.

Ligon’s decision, we suspect, is probably influenced by the victim’s mother, Barbara Hope, who had a romantic relationship with Robbins at the time of her daughter’s death. “Tristen didn’t just die,” Hope was quoted by the Houston Chronicle after Judge Mayes’ ruling. “If Mr. Robbins didn’t do it, who did? I don’t think it’s fair. I don’t think it should be so easy for people who kill babies.”


Ms. Hope’s anger is understandable. She lost a daughter. Thanks to the false testimony of Dr. Moore, the justice system convinced her that Neil Hampton Robbins killed her little girl. Who wouldn’t be angry—if for no other reason than to be angry for the sake of anger itself. The memory of a dead child demands as much from a grieving mother.


Did Neil Robbins kill little Tristen Rivet as Ms. Hope so vigorously suggests—a suggestion strongly supported by current D.A. Ligon? We don’t know. The Houston Chronicle reported that after Dr. Moore revised her initial homicide findings, at least four forensic pathologists reviewed the toddler’s medical records. Three of them said they could not determine with any degree of certainty how Tristen died while Dallas pathologist Linda Norton concluded the toddler’s death was a homicide but she did not appear in court before Judge Mayes to support her conclusions. The judge, therefore, rightfully did not consider her findings in reaching his conclusion that a “constitutional error in [Robbins’] trial probably caused a verdict in which there can be little confidence and which is fundamentally unfair.”


Wice, McDougal, and Judge Mayes all deserve the appreciation of all who perform difficult jobs in the pursuit of justice—defense attorneys, prosecutors and judges. These three gentleman conducted themselves with honor and dignity in the Robbins case, and we “tip our hats” to them for a job well-done in handling this difficult case. While criminal defense attorneys must always remain committed to correcting the wrongs of our justice system, they must also pay tribute to the system when it works correctly as it did in the Robbins case.



By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair