Amicus Curiae Brief — Robert Leslie Roberson, III, Petitioner v. Texas

No. 22-7546

In the Supreme Court of the United States

ROBERT LESLIE ROBERSON III,

Petitioner,

v.

TEXAS

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

TEXAS COURT OF CRIMINAL APPEALS

BRIEF OF THE INNOCENCE PROJECT OF

TEXAS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

MICHAEL WARE

CAITLIN GILBERT

THE INNOCENCE PROJECT

OF TEXAS

300 Burnett Street #160

Fort Worth, TX 76102

MANUEL G. BERRELEZ

Counsel of Record

VINSON & ELKINS LLP

2001 Ross Ave.,

Suite 3900

Dallas, TX 75201

(212) 220-7700

mberrelez@velaw.com

JEREMY C. MARWELL

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500W

Washington, DC 20037

Attorneys for Amicus Curiae

The Innocence Project of Texas

(Additional counsel listed inside cover)

AMBER M. ASPINALL

BRADLEY G. OSTER

VINSON & ELKINS LLP

845 Texas Ave.,

Suite 4700

Houston, TX 77002

JOSHUA R. JILOVEC

JACOB G. MATHEW

VINSON & ELKINS LLP

2001 Ross Ave.,

Suite 3900

Dallas, TX 75201

ROBERT H. WU

VINSON & ELKINS LLP

555 Mission St.,

Suite 2000

San Francisco, CA 94105

Attorneys for Amicus Curiae

TABLE OF CONTENTS

Page

Table of Authorities .................................................... II

Interest of Amicus Curiae ........................................... 1

Introduction and Summary of Argument ................... 3

Argument ..................................................................... 5

I.

Texas Enacted The Junk Science Writ To

Provide A Critical Safety Valve For

Convictions Based on Debunked Science, Even

After The Exhaustion Of Other Postconviction

Remedies ................................................................ 5

II. This Court’s Intervention Is Needed To Protect

Due Process Rights In The Context Of The

“Junk Science” Writ .............................................. 8

III. This Court Plays A Critical Role In Correcting

Errors In Capital Cases ...................................... 10

IV. The Postconviction Proceedings Here Violated

Petitioner’s Due Process Rights .......................... 13

A. Sustaining A Conviction Based On

Subsequently Discredited Science Violates

Due Process................................................... 13

B. The Uncritical Acceptance Of A Lower

Court’s Unsupported Findings Violates

Due Process................................................... 16

Conclusion .................................................................. 20

(I)

II

TABLE OF AUTHORITIES

Cases

Page(s)

Ake v. Oklahoma,

470 U.S. 68 (1985) ............................................ 15, 16

Cole v. State,

735 S.W.2d 686 (Tex. App.—Amarillo 1987),

rev’d, 839 S.W.2d 798 (Tex. Crim. App. 1990) ........ 5

Commonwealth v. Epps,

53 N.E.3d 1247 (Mass. 2016) ................................. 17

Del Prete v. Thompson,

10 F. Supp. 3d 907 (N.D. Ill. 2014) ........................ 17

Douglas v. California,

372 U.S. 353 (1963) ................................................ 19

Escobar v. Texas,

143 S. Ct. 557 (2023) .............................................. 10

Evitts v. Lucey,

469 U.S. 387 (1985) ................................................ 19

Ex parte Briseno,

135 S.W.3d 1 (Tex. Crim. App. 2004) .................... 11

Ex parte Chanthakoummane,

662 S.W.3d 450 (Tex. Crim. App. 2020) .................. 9

Ex parte Flores,

No. WR-64,654-02, 2020 WL 2188757 (Tex.

Crim. App. May 6, 2020) .......................................... 9

Ex parte Robbins,

360 S.W.3d 446 (Tex. Crim. App. 2011) ................ 14

Ford v. Wainwright,

477 U.S. 399 (1986) .......................................... 17, 19

Goldberg v. Kelly,

397 U.S. 254 (1970) ................................................ 18

III

Cases—Continued

Page(s)

Gutierrez v. Saenz,

565 F. Supp. 3d 892 (S.D. Tex. 2021), appeal

docketed, No. 21-70009 (5th Cir. Dec. 13,

2021) ....................................................................... 18

Han Tak Lee v. Tennis,

No. 08-cv-1972, 2014 WL 3894306 (M.D. Pa.

June 13, 2014), aff’d, 798 F.3d 159 (3d Cir.

2015) ................................................................. 14, 18

Hanson v. Baker,

No. 04-cv-00130, 2018 WL 10400454 (D. Nev.

Mar. 13, 2018), aff’d, 766 Fed. Appx. 501 (Fed.

Cir. 2019) ................................................................ 15

Holmes v. South Carolina,

547 U.S. 319 (2006) ................................................ 17

McDaniel v. Brown,

558 U.S. 120 (2010) ................................................ 16

Moore v. Texas,

139 S. Ct. 666 (2019) .............................................. 11

Moore v. Texas,

581 U.S. 1 (2017) .............................................. 10, 11

Penry v. Johnson,

532 U.S. 782 (2001) .......................................... 11, 12

Powell v. Texas,

492 U.S. 680 (1989) ................................................ 12

Riggins v. Nevada,

504 U.S. 127 (1992) ................................................ 18

Rochin v. California,

342 U.S. 165 (1952) ................................................ 13

Satterwhite v. Texas,

486 U.S. 249 (1988) ................................................ 12

IV

Cases—Continued

Page(s)

State v. Edmunds,

746 N.W.2d 590 (Wis. Ct. App. 2008) .................... 17

Statutes

TEX. CODE CRIM. PROC. art 11.071, § 5........................ 9

TEX. CODE CRIM. PROC. art. 11.073 ............................. 7

TEX. CODE CRIM. PROC. art. 11.073(d) ....................... 18

TEX. CODE CRIM. PROC. art. 64.01 ............................... 5

Other Authorities

Comm. on Identifying the Needs of the Forensic

Sci. Cmty., Nat’l Rsch. Council, Strengthening

Forensic Science in the United States: A Path

Forward (2009), https://www.ncjrs.gov/

pdffiles1/nij/grants/228091.pdf ................................ 7

Harold Leventhal, Appellate Procedures: Design,

Patchwork, and Managed Flexibility,

23 UCLA L. REV. 432 (1976) .................................. 18

House Comm. on Crim. Juris., Bill Analysis,

Tex. S.B. 344, 83rd Leg., R.S. (2013),

https://hro.house.texas.gov/pdf/

ba83R/SB0344.pdf .................................................... 7

Lauren McGaughy, Texas Rangers Stop Using

Hypnosis After Dallas Morning News

Investigation Reveals Dubious Science, DALL.

MORNING NEWS (Mar. 11, 2021),

https://bit.ly/3BvQdKd ............................................. 9

V

Other Authorities—Continued

Page(s)

S. Crim. Just. Comm., Bill Analysis, Tex. S.B.

344, 83rd Leg., R.S (2013),

https://capitol.texas.gov/tlodocs/83R/analysis/h

tml/SB00344F.htm ................................................... 6

Timothy Cole Advisory Panel on Wrongful

Convictions, Report to the Texas Task Force on

Indigent Defense (2010),

http://tidc.texas.gov/media/25663/FINALTCA

Preport.pdf................................................................ 6

Timothy Cole, INNOCENCE PROJECT,

https://innocenceproject.org/cases/timothycole/ ........................................................................... 5

INTEREST OF AMICUS CURIAE1

The Innocence Project of Texas was founded in

2006 by two criminal defense attorneys, current Executive Director Mike Ware and Jeff Blackburn, who

dedicated their careers to freeing the innocent. Since

that time, the Innocence Project of Texas has grown to

be one of the leading innocence organizations in the

country, having exonerated or freed 29 people.

The Innocence Project of Texas is dedicated to correcting past injustices, preventing future wrongful

convictions, and giving hope to people who feel that

they are out of options. As a nonprofit organization,

the Innocence Project of Texas relies on community

support to free the innocent, reform criminal justice

practices, and educate the public about wrongful convictions.

The Innocence Project of Texas has a direct and

substantial interest in this Court’s review of the Texas

Court of Criminal Appeals’ (“CCA”) decision in this

case. In the opinion below, the CCA denied habeas relief to the Petitioner, Robert Roberson III. As a leading organization in litigating wrongful convictions and

advocating for the exoneration of innocent individuals

in Texas, the Innocence Project of Texas is especially

qualified to comment on capital cases involving the

CCA and Article 11.073 of the Texas Code of Criminal

Procedure, known as the “junk science writ.” The Innocence Project of Texas supported the enactment,

1 All parties were given timely notice of the filing of this brief.

No counsel for any party authored this brief in whole or in part,

and no entity or person, aside from amicus curiae and its counsel,

made any monetary contribution intended to fund the

preparation or submission of this brief.

(1)

2

and was involved in the development, of that statute

to provide an important state postconviction mechanism to provide relief from wrongful convictions in

cases just like Mr. Roberson’s.

The Petition presents critically important legal

questions regarding the serious due process concerns

raised when advances in scientific and medical

knowledge undermine criminal convictions, and when

a reviewing court fails to grapple meaningfully with

the record developed in a postconviction process that

exists precisely to correct such errors. The Innocence

Project of Texas is concerned that Petitioner’s case is

emblematic of more systemic due process concerns

that have been raised in proceedings under Texas’s

junk science writ. Certiorari is urgently warranted to

provide guidance to the CCA and other lower courts

nationwide on the minimum due process requirements

that apply in postconviction proceedings of this nature, and to correct the lower court’s error on that

point in this capital case—an error that could lead to

the mistaken deprivation of a human life.

3

INTRODUCTION AND

SUMMARY OF ARGUMENT

The decision below, if allowed to stand, forecloses

one of Mr. Roberson’s last remaining remedies before

his execution. Nearly a decade ago, the Texas Legislature codified the junk science writ to provide a state

postconviction procedure to allow additional review of

criminal convictions based on outdated or subsequently debunked scientific theories.

But despite the original promise of the “junk science writ” in protecting the due process and other constitutional rights of criminal defendants, in practice

the writ has been applied in a manner that raises serious constitutional concerns. In this capital case, the

CCA summarily denied relief, despite overwhelming

record evidence that Petitioner’s underlying conviction

and death sentence rest on tabloid science. As courts

in other jurisdictions have held, upholding a conviction in these circumstances violates fundamental due

process principles. But the decision below raises a second and independent constitutional concern: the

courts failed to engage meaningfully with the postconviction record, and instead uncritically adopted nearly

word-for-word the prosecution’s proposed findings below.

Unfortunately, this case is not an outlier; similar

examples from the CCA and other courts underscore

the need for this Court’s intervention and guidance.

Despite its critical role in reviewing postconviction

proceedings under Texas’s “junk science” writ, the

CCA has repeatedly upheld criminal convictions that

rest on debunked scientific theories, in some instances

leading this Court to intervene repeatedly in a single

4

case to protect basic constitutional rights. As it has

done in past cases, this Court should grant plenary review or summarily reverse to correct the error here

and provide additional guidance to the CCA and other

courts. The CCA’s error in this capital case has the

gravest of possible consequences; the proceedings below represented one of Petitioner’s last remaining outlets for review of his conviction and capital sentence.

As the Petition demonstrates, the questions presented here are of substantial importance. Amicus

files this brief to offer additional context on the importance of the issues and the urgent need for this

Court’s review.

5

ARGUMENT

I.

Texas Enacted The Junk Science Writ To

Provide A Critical Safety Valve For

Convictions Based on Debunked Science,

Even After The Exhaustion Of Other

Postconviction Remedies

The origin of the junk science writ begins much

earlier than its effective date of September 2013. In

1985, in Lubbock, Texas, a picture of Army veteran

and Texas Tech University sophomore Timothy Cole

was shown to a young woman who had recently been

raped in a campus parking lot. 2 The woman twice

identified Cole as the perpetrator, once via the photograph, and later again in an in-person line up. Cole’s

conviction and 25-year sentence was based primarily

on her testimony.

Cole maintained his innocence throughout the judicial process. But there were no other witnesses, and

his case predated the now-routine use of DNA. Forensic testing would not become a well-established practice until 2001, when the Texas Legislature amended

the state’s Code of Criminal Procedure to allow for

postconviction DNA testing. 3 By then, Cole had already died behind bars, at the age of 39. Cole unfortunately did not live to learn that another man had confessed to the rape; that confession was corroborated by

2 State

v. Cole, 99th District Court, Lubbock County (Tex.

1986); see also Cole v. State, 735 S.W.2d 686, 688 (Tex. App.—

Amarillo 1987), rev’d, 839 S.W.2d 798 (Tex. Crim. App. 1990);

Timothy Cole, INNOCENCE PROJECT, https://innocenceproject.org/

cases/timothy-cole/ (last visited June 12, 2023).

3 See TEX. CODE CRIM. PROC. art. 64.01.

6

DNA evidence linking that man, rather than Cole, to

the assault.

Timothy Cole’s place in history as the first person

in Texas to be posthumously exonerated through DNA

testing ultimately led to the 2009 establishment of the

Timothy Cole Advisory Panel on Wrongful Convictions. The Advisory Panel brought together attorneys,

judges, and other community stakeholders in Texas to

address the growing concern over wrongful convictions. In its 2010 Report to the Texas Indigent Defense Commission, the Advisory Panel recommended

that Texas amend Chapter 11 of the Texas Code of

Criminal Procedure to reflect developments in forensic

science. Specifically, the Advisory Panel urged Texas

to recognize the need for “meaningful access to the

courts to those with claims of actual innocence following a conviction based on science that has since been

falsified.”4

Two years later, the Texas Legislature enacted

the junk science writ, creating a special procedural

pathway in state postconviction review for those

whose convictions were based on subsequently discredited science.5 The writ, codified as Article 11.073

of the Texas Code of Criminal Procedure, creates a pro-

Timothy Cole Advisory Panel on Wrongful Convictions,

Report to the Texas Task Force on Indigent Defense 29 (2010),

https://projects.nfstc.org/fse/pdfs/FINALTCAPresearch.pdf.

5 See, e.g., S. Crim. Just. Comm., Bill Analysis, Tex. S.B. 344,

83rd Leg., R.S (2013), https://capitol.texas.gov/tlodocs/83R/

analysis/html/SB00344F.htm (“The bill specifies that evidence to

contradict scientific evidence presented at trial is among the

types of claims or issues that can affect court consideration of an

application for a writ of habeas corpus.”).

4

7

cess to allow consideration of “relevant scientific evidence” that was either “not available to be offered by a

convicted person” at trial or evidence that “contradicts

scientific evidence relied on by the state.”6 The statute

empowers a habeas court to consider changes in the

scientific value of evidence—an overdue expansion

from prior law, which only allowed for evaluation of

new evidence. And importantly, the statute “provide[s] a path for relief where false and discredited forensics may have caused the false conviction of an innocent person.”7

Texas did not stand alone in enacting its “junk science writ.” Indeed, the forensics community had long

called for nationwide reform. For example, in 2009, the

National Academy of Sciences released a 400-page report warning that the “forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports

the forensic science community in this country.”8 The

Academy recognized that “undue weight” has been

placed on “imperfect testing.”9 Even more concerning,

the report explained that “imprecise or exaggerated

6 TEX. CODE CRIM. PROC. art. 11.073.

7 House Comm. on Crim. Juris., Bill Analysis, Tex. S.B. 344,

83rd Leg., R.S. at 3 (2013), https://hro.house.texas.gov/pdf/

ba83R/SB0344.pdf.

8 Comm. on Identifying the Needs of the Forensic Sci. Cmty.,

Nat’l Rsch. Council, Strengthening Forensic Science in the United

States: A Path Forward, at xx (2009), https://www.ncjrs.gov/

pdffiles1/nij/grants/228091.pdf.

9 Id. at 4.

8

expert testimony” has led to “the admission of erroneous or misleading evidence.”10

After Texas enacted its junk science writ, numerous other states nationwide, including California,

West Virginia, Mississippi, Connecticut, Wyoming,

Michigan, and Nevada, passed similar legislation. Despite the initial promise of such reforms, the reality of

how these procedures have functioned in practice has

been less successful. The CCA’s decision here, upholding Petitioner’s conviction and capital sentence despite

overwhelming postconviction evidence discrediting

the scientific theory upon which his conviction rests, is

unfortunately no outlier. Intervention from this Court

is urgently needed to correct the error and avoid a

wrongful execution in Mr. Roberson’s case, while also

giving important guidance to lower courts nationwide

about due process safeguards on postconviction proceedings of this sort.

II.

This Court’s Intervention Is Needed To

Protect Due Process Rights In The Context

Of The “Junk Science” Writ

By enacting the junk science writ, Texas and other

states provided an important and salutary safeguard

against the serious due process and other concerns

raised when criminal convictions rest on, or are

tainted by, subsequently debunked science.

The Petition compellingly demonstrates the due

process concerns raised in Mr. Roberson’s case, in-

10 Ibid.

9

cluding by the conduct and outcome of the postconviction proceedings below.11 Unfortunately, however, the

due process concerns in this case are no outlier.

For instance, in Ex parte Flores,12 the CCA denied

relief from a capital murder conviction obtained

through hypnotically enhanced testimony. It did so

despite a compelling record, developed on postconviction review, that subsequent advances in scientific

knowledge had discredited the use of such techniques.13 And the “junk science” proceedings fell short

of normal guarantees of due process, with the CCA

denying relief despite conceding that the trial court

had simply “adopted the State’s proposed findings of

fact and conclusions of law.”14 The defendant, Charles

Don Flores, remains on death row today, based on a

conviction and sentence predicated upon evidence

gathered through a technique voluntarily abandoned

by the Department of Public Safety and Texas Rangers

because of its untrustworthy results.15

11 Pet. 14–24, 26–39.

12 Ex parte Flores, No. WR-64,654-02, 2020 WL 2188757 (Tex.

Crim. App. May 6, 2020) (per curiam) (not designated for publication); see also Lauren McGaughy, Texas Rangers Stop Using

Hypnosis After Dallas Morning News Investigation Reveals Dubious Science, DALL. MORNING NEWS (Mar. 11, 2021),

https://bit.ly/3BvQdKd (McGaughy, Texas Rangers Stop Using

Hypnosis); Ex parte Chanthakoummane, 662 S.W.3d 450, 450–

451 (Tex. Crim. App. 2020) (Newell, J., dissenting) (“[h]ypnosis

has been discredited * * * as a forensic discipline to uncover forgotten memories of crimes”).

13 Flores, 2020 WL 2188757, at *1 (citing TEX. CODE CRIM.

PROC. art 11.071, § 5).

14 Id.

15 McGaughy, Texas Rangers Stop Using Hypnosis.

10

More recently, in Escobar v. Texas, the CCA denied

a death-row prisoner’s request for a new trial based on

the state’s use of forensic evidence subsequently

demonstrated to be misleading. The CCA did so despite the State’s express confession of error in briefing

to that court regarding the use of untrustworthy evidence, and the petitioner’s entitlement to a new trial.

This Court ultimately vacated and remanded, after

Texas again confessed error in its response to the certiorari petition, and urged this Court to vacate and remand for a new trial.16

The similarities between those cases and this one

are striking. Petitioner’s case involves a capital sentence that rests on scientific evidence (here, “Shaken

Baby Syndrome”) that has subsequently been soundly

discredited in the scientific community. But the CCA

once again denied relief in a judgment that cannot be

reconciled with the record developed on postconviction

review, and did so in a summary manner that raises

fundamental due process concerns.

III. This Court Plays A Critical Role

Correcting Errors In Capital Cases

In

This Court has historically played an important

role in vindicating constitutional rights in capital

cases, including in reviewing decisions of the CCA.

For example, in Moore v. Texas, 17 this Court vacated a decision of the CCA denying relief on an Atkins

16 Escobar v. Texas, 143 S. Ct. 557, 557 (2023) (vacating and

remanding “in light of the confession of error by Texas in its brief

[to this Court]”); see also Br. of Resp. State of Texas in Support of

Pet’r at 22–32.

17 581 U.S. 1 (2017).

11

claim of intellectual disability. This Court rejected the

CCA’s application of the so-called “Briseno factors”

(considerations created by the CCA in 200418 to determine whether a capital defendant has an intellectual

disability).19 After the CCA again denied relief on remand, this Court summarily reversed, finding the

CCA’s decision “inconsistent with [this Court’s prior]

opinion in Moore.”20 Indeed, even the prosecution had

agreed, in its brief to this Court, that Mr. Moore had a

viable Atkins claim “and cannot be executed.” 21 Yet

despite this Court’s prior holding that “[b]y design and

in operation, the Briseno factors ‘creat[e] an unacceptable risk that persons with intellectual disability

will be executed,’”22 this Court found that the CCA had

on remand simply “repeat[ed] the analysis [this Court]

previously found wanting.”23

To similar effect, in Smith v. Texas,24 this Court reversed the CCA’s denial of habeas relief, finding that

the CCA had disregarded a “broad and intractable

problem” previously identified by this Court in Penry

v. Johnson.25 The error in that case was that an instruction restricting the jury’s consideration of mitigation evidence was “constitutionally inadequate” if it

18 Ex parte Briseno, 135 S.W.3d 1, 8–9 (Tex. Crim. App. 2004).

19 Moore, 581 U.S. at 17–18.

20 Moore v. Texas, 139 S. Ct. 666, 670 (2019) (per curiam).

21 581 U.S. at 17.

22 139 S. Ct. at 670.

23 Ibid.;

see also id. at 672 (Roberts, C.J., concurring) (“On

remand, the [CCA] repeated the same errors that this Court

previously condemned—if not quite in haec verba, certainly in

substance.”).

24 543 U.S. 37 (2004) (per curiam).

25 Id. at 46 (citing Penry v. Johnson, 532 U.S. 782 (2001)).

12

prevented the jury from giving “‘full consideration and

full effect to mitigating circumstances’ in choosing [an]

appropriate sentence.”26

In denying relief, the CCA had also refused to allow

a special instruction regarding the defendant’s intellectual disability. Instead, it concluded “that petitioner’s low IQ and placement in special-education

classes were irrelevant” to the constitutional propriety

of the death penalty “because they did not demonstrate that he suffered from a ‘severe disability.’” 27

This Court disagreed, stating that there was “no question that a jury might well have considered petitioner’s

IQ scores and history of participation in special-education classes as a reason to impose a sentence more lenient than death.”28

In Powell v. Texas, this Court again intervened to

review and summarily reverse the CCA’s misapplication of this Court’s precedent in a capital case. This

Court originally vacated the judgment of the CCA and

remanded for further consideration in light of this

Court’s intervening decision in Satterwhite v. Texas,

which involved use of psychiatric evidence during the

penalty phase of a capital trial, when that evidence

was obtained in violation of a defendant’s Sixth

Amendment right.29 After the CCA affirmed the denial of relief on remand, this Court summarily reversed, holding that the CCA had “conflated the Fifth

26 Id. at 38 (quoting Penry, 532 U.S. at 797).

27 Id. at 44.

28 Ibid. (emphasis added).

29 See Powell v. Texas, 492 U.S. 680, 682–683 (1989) (citing

Satterwhite v. Texas, 486 U.S. 249 (1988)).

13

and Sixth Amendment analyses, and provided no support for its conclusion that petitioner waived his Sixth

Amendment right.”30

This Court’s intervention is no less urgently warranted here than it was in Moore, Smith, and Powell.

Because actual innocence is at issue in Mr. Roberson’s

case, the stakes are that much higher.

IV. The Postconviction Proceedings Here

Violated Petitioner’s Due Process Rights

While the “administration of criminal justice is

predominantly committed to the care of the States,”

federal courts hold a critical role in enforcing the Due

Process Clause and ensure “an evaluation based on a

disinterested inquiry pursued in the spirit of science,

on a balanced order of facts exactly and fairly stated,

[and] on the detached consideration of conflicting

claims.”31 But a conviction based on quasi-scientific

explanations and subsequently discredited science is

fundamentally unfair, and inadequate postconviction

review deprives criminal defendants of important due

process safeguards against inaccurate results.

A.

Sustaining A Conviction Based On

Subsequently

Discredited

Science

Violates Due Process

State and federal courts across the country have

grappled with, and reached inconsistent results regarding, the due process concerns raised when a criminal conviction rests on medical or scientific expert testimony that is subsequently discredited. This Court

30 Id. at 683.

31 Rochin v. California, 342 U.S. 165, 168, 172 (1952).

14

should grant certiorari to provide much-needed guidance to the CCA and other lower courts by “hold[ing]

that a conviction later found to be based upon unreliable scientific evidence deprives the defendant of a fundamentally fair trial and violates the Due Process

Clause.”32

As the Petition explains at length, various courts

around the country have concluded that when a criminal conviction was obtained in reliance on subsequently discredited expert or scientific theories, a conviction may need to be set aside, including on due process grounds.33 Courts have recognized and acknowledged that the fundamental fairness of a trial is undermined, in violation of due process, when a conviction is procured through subsequently invalidated expert testimony.34

The same principles apply in the context of convictions based on “Shaken Baby Syndrome.” For example, in Hanson v. Baker, a habeas petitioner argued

32 See Ex parte Robbins, 360 S.W.3d 446, 471 (Tex. Crim. App.

2011) (Cochran, J., dissenting) (predicting that this Court will

one day so hold, “because it raises an intolerable risk of an

inaccurate verdict and undermines the integrity of our criminal

justice system”).

33 Pet. 29–31 (citing cases from the Third and Ninth Circuits,

and from courts in Wisconsin, Massachusetts, New York,

Maryland, and Illinois).

34 See Han Tak Lee v. Tennis, No. 08-cv-1972, 2014 WL

3894306, at *15 (M.D. Pa. June 13, 2014) (noting the “emerging

consensus that, upon a proper showing by a habeas petitioner,

this paradigm shift in our understanding of * * * science may

entitle petitioners to post-conviction relief”), aff’d, 798 F.3d 159

(3d Cir. 2015).

15

that the prosecution’s reliance on flawed medical expert testimony in support of a “Shaken Baby Syndrome” diagnosis had undermined the fairness of his

trial.35 The court agreed, stating that “the ‘triad-only’

diagnosis of shaken baby syndrome has been repudiated” and that “the scientific consensus now is that

short falls by children can in fact cause the triad of

subdural hemorrhage, cerebral edema and retinal

hemorrhage, and death.”36 Based on these scientific

findings, the court concluded that “the prosecution’s

arguments based on that evidence[] rendered his trial

fundamentally unfair and violated fundamental conceptions of justice,” rising to the level of a due process

violation. 37 That decision cannot be reconciled with

the ruling of the CCA in Mr. Roberson’s case, which

denied relief on a very similar theory.38

The due process violation here is particularly stark

in light of this Court’s decision in Ake v. Oklahoma.39

There, this Court addressed the due process implications that arose through the use of psychiatrists as expert witnesses. In doing so, it noted that psychiatry is

not an exact science and that psychiatrists widely and

frequently disagree on the appropriate diagnosis to be

attached to particular symptoms.40 Due to this debate

within the medical community, this Court explained

35 Hanson v. Baker, No. 04-cv-00130, 2018 WL 10400454, at

*23 (D. Nev. Mar. 13, 2018), aff’d, 766 Fed. Appx. 501 (9th Cir.

2019).

36 Id. at *25–26.

37 Id. at *26.

38 Pet. App. 003–004; see also Pet. 16–22.

39 470 U.S. 68, 81–85 (1985).

40 Id. at 81.

16

that due process required a factfinder to resolve differences within the medical community “on the basis of

the evidence offered by each party.” This Court emphasized the important role of opposing expert testimony

to address shortcomings and raise doubt in the mind

of the factfinder regarding other expert testimony.41

Here, the causation theory that was the crux of the

prosecution’s case (Shaken Baby Syndrome) has been

largely discredited by scientific and medical advances

that post-date Mr. Roberson’s conviction. Despite Article 11.073, the postconviction courts ignored the vast

evidence of the shortcomings and fallacies of that

quasi-scientific hypothesis (as well as new evidence

that no homicide even occurred) and instead sustained

a capital murder conviction that rests on that now-discredited hypothesis. Due process requires at a bare

minimum that the CCA engage meaningfully with the

record developed here showing that advances in scientific understanding have completely undermined the

reliability of the conviction.42

B.

The Uncritical Acceptance Of A Lower

Court’s Unsupported Findings Violates

Due Process

The due process concerns raised by the CCA’s denial of relief are compounded by the procedure the

CCA used in resolving the postconviction proceedings.

41 Ibid. (emphasis added); see also McDaniel v. Brown, 558 U.S.

120, 136 (2010) (per curiam) (“Given the persuasiveness of such

evidence in the eyes of the jury, it is important that it be

presented in a fair and reliable manner.”).

42 See Ake, 470 U.S. at 82.

17

Here, the CCA uncritically accepted the lower

court’s findings of fact and conclusions of law, without

meaningfully engaging with the overwhelming record

evidence tending to support Petitioner’s right to relief. 43 “In capital proceedings generally, this Court

has demanded that factfinding procedures aspire to a

heightened standard of reliability.”44 Yet the proceeding here lacked even basic indicia of heightened reliability, by failing to engage meaningfully with evidence

that the medical and scientific theories underlying Mr.

Roberson’s conviction were wholly unreliable.45

As this Court has made clear, due process demands

more. In Holmes v. South Carolina, 547 U.S. 319, 331

(2006), this Court explained that where a factfinder

“evaluat[es] the strength of only one party’s evidence,

no logical conclusion can be reached regarding the

strength of contrary evidence offered by the other side

to rebut or cast doubt.” That principle applies equally

here. The CCA cannot simply rubber stamp a trial

court’s near verbatim adoption of the prosecution’s

43 Pet. App. at 002–004.

44 Ford

v. Wainwright, 477 U.S. 399, 411 (1986) (emphasis

added).

45 Cf. Commonwealth v. Epps, 53 N.E.3d 1247, 763–767 (Mass.

2016) (vacating a conviction based on Shaken Baby Syndrome

due to modern medical understanding); Del Prete v. Thompson,

10 F. Supp. 3d 907, 957–958 (N.D. Ill. 2014) (finding that on a

preponderance of the evidence—the same standard of review

under the Texas junk science writ—concerning the modern

understanding of Shaken Baby Syndrome, no reasonable jury

would have convicted the defendant); State v. Edmunds, 746

N.W.2d 590, 598–599 (Wis. Ct. App. 2008) (finding that based on

the newly developed record regarding Shaken Baby Syndrome, a

jury would have reasonable doubt as to guilt).

18

flawed and misleading factual recitations, 46 without

engaging with the record developed in the postconviction proceedings. That conclusion is particularly true

when a capital conviction “rests almost entirely upon

scientific pillars which have now eroded.”47

Due process “protects against procedures which

confound the structural prerequisites of the criminal

justice system.”48 In enacting the junk science writ,

the Texas Legislature provided a postconviction procedure for a criminal defendant to ask a reviewing court

to “consider whether the field of scientific knowledge,

a testifying expert’s scientific knowledge, or a scientific method” has changed since the trial.49 But by uncritically rubber-stamping the findings of the habeas

court—a court that copied-and-pasted the State’s skeletal arguments as its own without meaningful engagement with the overwhelming body of evidence undermining those findings, including unrebutted evidence

46 Compare Pet. App. 006–017 (trial court’s findings of fact and

conclusions of law), with Pet App. 328–345 (Texas’s proposed

findings of fact and conclusions of law); see also Pet. 24 (“The

habeas court’s [Findings of Fact and Conclusions of Law] largely

tracked the State’s proposal, including its typographical and

grammatical errors.”).

47 Han Tak Lee v. Tennis, 2014 WL 3894306, at *16; Goldberg

v. Kelly, 397 U.S. 254, 271 (1970); Riggins v. Nevada, 504 U.S.

127, 131, 136–137 (1992) (finding a due process violation

resulting from a “one-page order that gave no indication of the

court’s rationale”); see also Harold Leventhal, Appellate Procedures: Design, Patchwork, and Managed Flexibility, 23 UCLA L.

REV. 432, 438 (1976) (“[T]here is accountability in the giving of

reasons.”).

48 Gutierrez v. Saenz, 565 F. Supp. 3d 892, 910 (S.D. Tex. 2021),

appeal docketed, No. 21-70009 (5th Cir. Dec. 13, 2021).

49 TEX. CODE CRIM. PROC. art. 11.073(d).

19

the child’s death was the result of natural and accidental causes and not homicide—the CCA fell short of

basic principles of due process while also frustrating

the original intent of the junk science writ.50

In enacting the junk science writ, Texas made a

laudable and pioneering commitment to ensuring that

its criminal convictions—and in some cases, capital

sentences—are not dependent on faulty or disproven

scientific explanations. But in honoring that commitment, the State and its institutions must act consistent with all “applicable due process norms,” including the guarantees of due process.51 “The minimum

assurance that [decisions about] * * * life-and-death”

are adequately informed “requires respect for the basic

ingredient of due process, namely, an opportunity to

be allowed to substantiate a claim before it is rejected.”52 Here, due process demands that the judgment below be reversed, because Petitioner’s conviction and death sentence rest on a thoroughly discredited Shaken Baby Syndrome hypothesis rejected by

modern science.

50 Douglas v. California, 372 U.S. 353, 358 (1963).

51 Evitts v. Lucey, 469 U.S. 387, 400–401 (1985).

52 Ford, 477 U.S. at 414 (internal quotation marks omitted).

20

CONCLUSION

For the foregoing reasons and those in the Petition,

the Petition for a Writ of Certiorari should be granted.

In the alternative, this Court should summarily reverse.

Respectfully submitted.

MICHAEL WARE

CAITLIN GILBERT

THE INNOCENCE

PROJECT OF TEXAS

300 Burnett Street #160

Fort Worth, TX 76102

AMBER M. ASPINALL

BRADLEY G. OSTER

VINSON & ELKINS LLP

845 Texas Ave.,

Suite 4700

Houston, TX 77002

JOSHUA R. JILOVEC

JACOB G. MATHEW

VINSON & ELKINS LLP

2001 Ross Ave.,

Suite 3900

Dallas, TX 75201

MANUEL G. BERRELEZ

Counsel of Record

VINSON & ELKINS LLP

2001 Ross Ave.,

Suite 3900

Dallas, TX 75201

(212) 220-7700

mberrelez@velaw.com

JEREMY C. MARWELL

VINSON & ELKINS LLP

2200 Pennsylvania Ave.,

NW, Suite 500W

Washington, DC 20037

ROBERT H. WU

VINSON & ELKINS LLP

555 Mission St.,

Suite 2000

San Francisco, CA 94105

Attorneys for Amicus Curiae

JUNE 2023