Fair? Despite new medical opinion, no new trial

“Half of what we will teach you in medical school will, by the time you are done practicing, be proved wrong,” said Dr. Mehmet Oz, one of Oprah Winfrey’s health experts, when a Time magazine interviewer asked him to recall the best advice he’d received in medical school.

It doesn’t take a career span for forensic science to advance. In a relatively few years, changing opinions can raise disturbing questions about the guilt of people convicted by testimony that relied on subsequently discredited theories.

In 1999, Neal Robbins was convicted of the murder of his girlfriend’s 17-month-old daughter. Medical Examiner Patricia Moore testified that the baby was murdered – suffocated by compression of her chest and abdomen.

A defense expert said the cause of death could not be determined, but Dr. Moore’s opinion carried the day. Eight years later, Dr. Moore withdrew her opinion.

Changes in accepted thought about such deaths, and further professional experience, had led her to conclude that an “undetermined” certification would have been more appropriate.

Mr. Robbins requested a new trial, and an appellate court considered two main issues: First, whether a person should get a new trial when “evidence necessary to his conviction becomes unreliable.” Second, whether Dr. Moore’s original testimony was “false or at least gave a false impression.”

Last year, after much wrangling, the court of appeals denied Robbins’ request in a 5-4 decision. Robbins won’t get a new trial, the court decided, because the jury might have found him guilty anyway. And Dr. Moore’s original testimony was not “false” as defined by law.

Maybe the jury would have found Robbins guilty even without Dr. Moore’s testimony that the baby died of inflicted injuries; maybe not. Because there’s no way to know, I think Robbins should get a new trial even if he’s actually guilty.

The arguments about what constitutes false testimony were also disturbing. A majority of the appellate judges said Dr. Moore’s original opinion, though it might have been wrong, was not legally false. But a judicial opinion in a habeas corpus proceeding prior to the appeal was remarkably harsh. That judge said Dr. Moore’s opinions “were based on false pretenses of competence, objectivity and underlying pathological reasoning and were not given in good faith.”

Dr. Moore should be commended, not condemned. She behaved honorably. I wonder how many other forensic pathologists who change their minds based on new science or just on increased experience will behave as honorably if they have to worry they’ll be accused of giving false testimony and acting in bad faith.

How many pathologists will risk being attacked by judicial opinions or hounded by prosecutors or police who dislike their new opinion?

How many will come forward and say they were wrong, knowing that in subsequent court appearances their character and competence will be attacked and they will be grilled about “false testimony” given in the past?

The Supreme Court will probably hear the Robbins case. Its deliberations will be important to both Mr. Robbins and forensic pathologists.

husercj@co.laplata.co.us Dr. Carol J. Huser, a forensic pathologist, has served as La Plata County coroner since January 2003.