Innocence Project

More than a decade after a Texas man was convicted of the murder of a 19-month-old boy in his care, an appeal was filed last month claiming he was convicted based on faulty science.

 
Rigoberto Avila was watching a basketball game on TV while babysitting his co-worker’s two young sons, when the older boy, Dylan, alerted him that his younger brother, Nicholas, wasn’t breathing. Nicholas died a few hours later at Providence Memorial Hospital.
 
Avila, as well as Dylan and the boys’ mother said that the boys played roughly, the older one sometimes mimicking wrestlers he saw on TV. But, the notion that horse play could have led to the death of the toddler was dismissed by the county’s longtime medical examiner and other doctors. The medical experts on the case at the time said that the extensive internal injuries could not have been caused by his roughly 40-pound brother. Avila was convicted and sentenced to death.
 
The Austin Chronicle reported that according to forensic pathologists, as well as a physicist and a biomechanical engineer who were asked recently to review Avila’s case, the assertion made at trial — that it’s impossible that the injuries were a result of normal playing around — is inaccurate. That assertion was made by George Raschbaum, the pediatric surgeon who worked on Nicholas at the hospital, and medical examiner Juan Conti.
 
Experiments conducted by renowned biomechanical engineer Chris Van Ee and physicist Richard Reimann revealed that a drop from just 18 inches off the ground could have increased Salinas’ weight by up to 500 pounds on impact, and that it was possible that the older brother delivered enough force to cause the injuries.
 
“In short, says attorney Crawford, ‘I think that this is a case where scientific evidence really calls into question the reliability of the conviction,’ demonstrating that Nicholas’ death was a ‘tragic accident’— exactly the kind of case that newly enacted Senate Bill 344 was intended to address.”
 
SB 344, authored by Houston Democratic Senator John Whitmire, expands the law to give inmates convicted by outdated or “junk” science the ability to appeal those convictions. In Whitmire’s statement of intent, he specified cases of infant trauma: “ ‘So this case is … the poster child case for SB 344 and the reasons that led to its passage,’ argues Crawford, who notes that Avila’s is the first appeal of a capital case filed under the new law.”
 
In addition to faulty science claim, there are serious questions about the merit of Avila’s interrogation and written statements from the night Nicholas died. Avila maintains that El Paso Police Department Detective Tony Tabullo, then a 24-year veteran, had him read over his account of events and initial before and after each paragraph of the statement before signing off on the document. Sometime later, Tabulla returned with photos of Nicholas’ body and asked what happened. According to Avila, he said he had no idea, but according to Tabulla, Avila then confessed to stomping on the young child. Tabulla amended Avila’s statement, but Avila’s initials after the new insertions about what happened were missing. The interrogation wasn’t recorded and Tabullo was alone in the room with Avila.
 
It is unclear if the new law will be applied to Avila’s case, but according to the Chronicle, it is hard to imagine that Avila would have been convicted if biomechanics had been reviewed pre-trial. Crawford is hoping Avila will be granted a hearing in which a district judge can evaluate the impact of the science on the conviction.