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In El Paso County, a judge issued detailed findings early this month that represent good news for death row inmate Rigoberto Avila, Jr. For years, Mr. Avila has been challenging his capital conviction for the murder of his friend’s 19-month old son. As we explore in-depth later in this post, the course of the legal proceedings has been marked by the type of State obfuscation and wrangling—mixed with the judicial embrace of finality at the expense of due process—that often characterize death penalty cases in Texas. Scattering this miasma, Judge Annabell Perez’s findings are a welcome and powerful breath of fresh air. At bottom, her findings make clear that the medical evidence used to persuade jurors that Mr. Avila was the only person in the house who could have killed the victim simply does not stand up to experts’ current understanding of biomechanics.

Like all capital cases, this one is tragic. After Mr. Avila called 911, paramedics found him still on the phone, kneeling over the badly-injured child. Mr. Avila told them that he had left the 19 month-old child and his 4 year-old brother to play in another room. Eventually, the older brother came to Avila and said that he had placed his hand over his younger brother’s mouth. This is what prompted Mr. Avila to check on the child and then call in the emergency. Indeed, the injured child was no longer breathing, and paramedics soon discovered a large bruise on his abdomen. Their efforts, and an emergency surgical team’s intervention, did not resuscitate the child, and he died.

The State’s case was that Mr. Avila had intentionally killed the victim, violently stomping the child in the abdomen with his foot multiple times. Mr. Avila, who testified in his own defense, claimed that he was watching television in another room and the victim’s older brother told him that the child was hurt. He also introduced evidence suggesting that the massive abdominal bruise could have been caused by one traumatic blow. The prosecution—led by Assistant District Attorneys George Locke and Gerald Cichon—trashed the idea that the younger brother could have caused the abdominal bruise, obtaining testimony from one of its witnesses that the four year-old child would have had to drop from 20-feet in the air to produce the necessary force to cause the fatal injury.

Well, it turns out that the prosecution and its experts were incorrect. The judge’s recent findings explain how Mr. Avila’s defense team brought forth compelling and uncontroverted new scientific evidence demonstrating that the four year-old brother—who watched wrestling and often wrestled with his younger brother—could have caused the fatal injury by jumping from a height of just 18 inches. Since the trial took place in 2001, advancements in biomechanical sciences have fundamentally changed the professional study and understanding of traumatic impacts upon the human body. In the court’s words, “In the instant case, the testimony of the State’s experts that a child D.S.’s size was not physically capable of causing N.M.’s injuries has been fundamentally and scientifically challenged and arguably refuted” (page 44).

The State did not meaningfully challenge the new evidence. Instead, some of its expert witnesses from the trial—who are admittedly not experts in biomechanics—simply stated that their views about the child’s cause of death did not change. On top of this, the State layered its argument that the defendant could not prevail under the statute in question unless he got a testifying expert to recant trial testimony. The court sensibly rejected that claim (see page 37).

Ultimately, the court determined that the new evidence was material (see page 42), and found that the defendant proved there was a reasonable likelihood that the jury relied on false and misleading testimony in coming to its verdict. On this basis, it recommended that Mr. Avila be granted a new trial. While the defense team invited the prosecution to join its request to the Texas Court of Criminal Appeals for a new trial, the El Paso District Attorney Jaime Esparza told the media that he would challenge the lower court’s recommendation. The Court of Criminal Appeals will have a thorough record—with persuasive scientific evidence only offered by the defense—and solid judicial findings on which to reject the DA’s challenge. (For more about the scientific evidence relevant to this case, see this earlier article by the always-excellent Jordan Smith.)

It is fair to wonder why the State is continuing to defend a conviction that lacks a solid scientific grounding. The tenets of due process, the possibility of Mr. Avila’s innocence, and the resources required to extend the fight all suggest that a new trial is the most reasonable outcome. Interestingly, the El Paso DA’s office is not the only one facing questions about what to do when a case falls apart in light of advanced scientific scrutiny. Earlier this year, we examined a rash of remands in Texas based on false testimony, some of it medical evidence used to put men on death row. Those cases

reveal[ed] an interesting pattern: substantial allegations that prosecutors—either knowingly or unknowingly—introduced false testimony, or relied on scientifically problematic evidence. . . . [R]ed flags seem to be flying across the Lone Star State,  considering nearly half the cases scheduled to result in executions in 2017 may have been tainted by false or unreliable evidence.

The State’s willingness to fight against objective evidence of unfairness is telling. Even in Mr. Avila’s case, earlier proceedings show that the story the prosecution tells at trial may be miles from the truth, and prosecutors will defend the verdict until the cows stumble home. In 2007—some 11 years ago—a federal district court had determined that Mr. Avila’s death sentence had to be overturned because the State suppressed exculpatory expert evidence indicating that the victim had indeed suffered one blow instead of multiple blows to the abdomen. The Fifth Circuit, ever-ready to defer to the prosecutors and the state courts (that themselves defer to prosecutors), reversed the ruling and reinstated the death sentence, but did not acknowledge (or refute) some of the ugly truths the district court opinion revealed.

The earlier proceedings show that the prosecution had consulted with an expert, Dr. Wilson, who believed that the victim likely suffered a single blow. Of course, a State witness espousing this view would have effectively prevented the State from eliciting more compelling testimony that Mr. Avila kicked or stomped upon the child several times, and the prosecution never called Dr. Wilson to testify. In post-conviction litigation, the defense submitted an eye-opening affidavit from Dr. Wilson. In it, he explained that he had told the prosecution he believed the victim suffered a single blow and showed them diagrams to that effect. This crucial fact—and other exculpatory aspects of Dr. Wilson’s opinion—were never disclosed to the defense. In post-conviction, the trial prosecutors each submitted their own affidavits claiming that Dr. Wilson never told them about his one-blow viewpoint. The Fifth Circuit latched on to the prosecutors’ affidavits in its decision to reinstate the death penalty. (Why most courts so readily accept prosecutors’ statements as true when they are parties interested in the outcome of a proceeding is a question we will certainly explore more in the future. But, ask yourself, who has more incentive to lie in this context: the prosecutors or the doctor?)

Nowhere did the Fifth Circuit or any other authority ever respond to these observations made by the federal district court:

[Cichon and Locke] effectively concealed from petitioner’s trial counsel all of Dr. Wilson’s mitigating opinions. In fact, the prosecution went to great lengths to ensure the defense would not contact Dr. Wilson prior to trial, repeatedly listing Dr. Wilson as both a potential fact and expert witness, furnishing Petitioner’s trial counsel with a copy of Dr. Wilson’s surgical report (which contained no mitigating or exculpatory information), advising the trial court on the record it could not appoint Dr. Wilson to assist petitioner’s trial counsel because such an action would create a conflict of interest, and designating Dr. Wilson as the prosecution’s representative at Nicolas’ second autopsy. Cichon and Locke engaged in egregious professional misconduct.

The issue that was ruled upon this month is distinctive from that litigated a decade ago. But, notice how they are related. In 2007, the State resisted the defense’s claim that evidence indicating the child died due to one traumatic injury was relevant. Today, the entire scientific discussion takes for granted that the victim may have suffered just a single blow to the abdomen. While this current focus is dictated by legal context and constraints, it is amazing that prosecutors were able to: portray Mr. Avila as a child-stomper at trial; withhold compelling evidence from its own expert that would have undermined that claim; and, overcome explicit findings of “egregious professional misconduct” without any repercussions.

Problems with the integrity of Mr. Avila’s conviction were surfaced many years ago. One reason prosecutorial misconduct must be taken seriously is that it produces wrongful convictions. Unfortunately, the courts once before shrugged off evidence showing that the prosecution should not be trusted. Now, with the DA defending bunk scientific testimony, the courts will be asked again whether the State should be trusted in this case. Fool them once, shame on the prosecution; fool them twice, shame on the courts.

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