New Law Gives New Hope to Death Row Inmate

When Iris Morgenstern, an English teacher, remembers her former student Robert Avila, she pictures the towering El Paso teen squeezing a tiny dropper of food into the mouth of a scrawny newborn kitten.

“Robert is just a really gentle, kind soul,” she said.

That is why, more than a decade after he was convicted of stomping to death his girlfriend’s 19-month-old son in a fit of jealousy, she still cannot believe that he is facing execution. Now, after years of fighting to prove his innocence, Morgenstern and Avila’s legal team hope a new law will give the death row inmate a chance for a new trial and the opportunity to prove his innocence.

In the last legislative session, in the wake of dozens of exonerations in recent years based on advances in forensic science, Texas lawmakers approved Senate Bill 344. The first law of its kind in the nation, it allows courts to grant defendants new trials in cases in which forensic science has evolved. On Friday, Avila’s lawyers filed a motion under the new statute arguing that recent developments in biomechanical science that were unavailable at the time of their client’s 2001 trial indicate that Nicholas Macias’s death may have been the result of an accident.

But Jaime Esparza, the El Paso County district attorney, said he was not convinced that the jury’s verdict, based on scientific testimony and a signed confession, was wrong. On Wednesday, a judge will hear arguments from both sides as Avila’s lawyers seek the withdrawal of his January 2014 execution date to allow time for full consideration of his claims under the new law.

“Finality and certainty is important, but we have to also have a criminal justice system that is flexible enough to take into account when we have scientific advancements and to allow people like Avila to have their day in court,” said Cathryn Crawford, one of Avila’s lawyers at the Texas Defender Service, which represents death row inmates.

Avila’s 2001 conviction hinged on El Paso County prosecutors’ theory that while baby-sitting his girlfriend’s two children, Avila became jealous of the baby Nicholas and stomped on him.

The Navy veteran, then a 28-year-old with no criminal background or history of violence, contended that he was innocent and that he had been out of the room when the baby was injured. He said he learned that the baby had stopped breathing when the older child, a 4-year-old who had been fixated on televised wrestling shows, came into the living room where Avila was watching TV and told him that he had held his hand over his little brother’s mouth. Avila’s trial lawyers suggested that some other adult may have caused the fatal injuries.

Jurors rejected the notion that the only other person in the house at the time — the toddler — could have caused such damage. Dr. George Raschbaum, a pediatric surgeon, explained that the baby’s injuries were so severe that the 4-year-old could have caused them only if he had jumped from a height of 20 feet. The jurors also saw a signed confession, which Avila has disavowed, in which he wrote, “I don’t know what came over me, but I walked over and stamped on him with my right foot.”

It was the second of two statements Avila gave the night of the baby’s death. In the first, he adamantly denied hurting the child. The other, he alleges in legal filings, was written by officers while he slept. Avila said the detective who told him to sign the second statement after he awoke told him it was simply a clarification of the first.

At the end of a three-and-a-half-day trial, the jury found Avila guilty and sentenced him to death.

Crawford, Avila’s court-appointed lawyer, said that after his previous appeals failed she hired a scientist to examine the evidence that doctors used in 2001 to determine the child’s cause of death. In an April 2013 affidavit, Dr. John Plunkett, a forensic pathologist, wrote that only a few scientists understood the importance of biomechanics in child deaths at the time of Avila’s trial.

“It is mandatory and in the interest of justice for a qualified physicist or biomechanician to perform the appropriate tests, quantifying the potential forces required to cause Nikki’s intraabdominal injuries,” he wrote.

Dr. Chris Van Ee, a biomedical and mechanical engineer who specializes in using impact biomechanics and accident reconstruction to identify the causes of injury, performed a laboratory experiment in May 2013. Using information from the case, he set out to determine whether a child jumping about 18 inches from a mattress onto an infant could cause fatal injuries.

“Results from the testing indicate that a child approximately the size of Nicholas’s older sibling jumping off of a bed landing feet first onto another child’s abdomen could produce abdominal impact forces as large as 400-500 lbs.,” Dr. Van Ee reported, concluding that such an accident could have caused the child’s death.

Dr. Janice Ophoven, a forensic pathologist who specializes in pediatric forensics, said that when Avila went to trial more than a decade ago, forensic pathologists did not have the tools to assess biomechanical forces in infant deaths. Juries were left to make decisions on whether trauma was the result of an accident or malice based on incomplete science and emotionally charged testimony, she said.

“It’s a completely different world now,” she said, adding that advances in this field have improved everything from toy design to playground engineering. “In this day and age, there is a scientific way to evaluate the potential forces that could have been generated in the Avila case.”

That is why SB 344 is critical not just in Texas, she said, but as a model for other states as they seek to address cases in which scientific advances could provide new perspective on past convictions.

State Sen. John Whitmire, D-Houston, the chairman of the Senate’s Criminal Justice Committee, wrote the bill. He said he has watched for years as cases have been overturned that were based on outdated arson theories, bogus dogsniffing evidence and inaccurate evaluations of brain injuries that were thought to have resulted from shaken baby syndrome.

“We should always be certain, obviously in more extreme cases of the death penalty being the outcome, that you have the right person,” Whitmire said.

Esparza, the district attorney, said he was sure Avila caused Nicholas Macias’s death. He said he had not seen the inmate’s latest court filing, but that he did not expect it to change his opinion, though he has not opposed previous postponements of the execution date.

“I believe the jury’s verdict is a good verdict,” he said.

Ms. Morgenstern, who now teaches English at El Paso Community College, hopes advances in science will change Esparza’s mind and convince the court to give her former student another chance to prove his innocence. She stays in touch with Avila on death row at the Polunsky Unit in Livingston. He asks about the latest animal she has rescued, she said, and she tells him about the latest news.

“The whole world knows how far science has come in the last 12 years,” she said. “I think it’s clear to everybody involved that Robert deserves a new trial.”

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