In an unpublished case last week, Judge Cochran, concurring, joined the majority in remanding a habeas petition for an evidentiary hearing. Judge Cochran cautioned:

"The judiciary must be ever vigilant to ensure that verdicts in criminal cases are based solely upon reliable, relevant scientific evidence-scientific evidence that will hold up under later scrutiny. I have previously expressed my concern about "the fundamental disconnect between the worlds of science and of law." Ex parte Robbins, No. AP-76464, ___ S.W.3d ___, 2011 WL 2555665 at *19 (Tex. Crim. App. June 29, 2011) (Cochran, J., dissenting).

This disconnect between changing science and reliable verdicts that can stand the test of time has grown in recent years as the speed with which new science and revised scientific methodologies debunk what had formerly been thought of as reliable forensic science has increased. The potential problem of relying on today's science in a criminal trial (especially to determine an essential element such as criminal causation or the identity of the perpetrator) is that tomorrow's science sometimes changes and, based upon that changed science, the former verdict may look inaccurate, if not downright ludicrous. But the convicted person is still imprisoned. Given the facts viewed in the fullness of time, today's public may reasonably perceive that the criminal justice system is sometimes unjust and inaccurate. Finality of judgment is essential in criminal cases, but so is accuracy of the result--an accurate result that will stand the test of time and changes in scientific knowledge.

Id. The problem in this case, as in Robbins, is not that the science itself has evolved, but that it is alleged that the scientific testimony at the original trial was not fully informed and did not take into account all of the scientific evidence now available."

Full opinion at: http://www.cca.courts.state.tx.us/OPINIONS/HTMLOPINIONINFO.ASP?OPINIONID=22089