After staying Tilon Carter’s execution in May to consider allegations that his conviction and death sentence were the product of false or misleading forensic testimony, the Texas Court of Criminal Appeals has now ruled that Carter (pictured) is entitled to an evidentiary hearing on two of his claims. In a September 27 order, the appeals court directed the Tarrant County (Fort Worth) trial court to conduct a hearing on whether Texas “presented false or misleading testimony by the State Medical Examiner,” in violation of Carter’s right to due process and whether “new scientific evidence, which was unavailable at the time of his trial, contradicts scientific evidence the State relied on at this trial.” The order leaves the prior stay of execution in place. Carter was convicted and sentenced to death in November 2006 based upon testimony by Tarrant County Medical Examiner Nizam Peerwani that he had smothered 89-year-old James Tomlin during the course of a robbery. In fact, the autopsy listed Tomlin’s cause of death as “smothering with positional asphyxia,” which could have been unintentional. Carter’s lawyers argued that scientific evidence that was unavailable at the time of trial contradicts Peerwani’s testimony, and he presented statements from three forensic pathologists who concluded that the autopsy findings contradict the state’s theory that Tomlin was intentionally smothered. Carter’s attorney, Raoul Schonemann, wrote in a court filing, “While the experts disagreed on the ultimate cause—whether Mr. Tomlin’s death was caused by positional asphyxiation or a cardiac event—they unanimously agreed that the evidence does not show that Mr. Tomlin’s death was the result of intentional smothering.” Carter would not be subject to the death penalty if he did not intentionally kill Tomlin. Carter’s lawyers also alleged that his trial counsel had provided ineffective assistance by failing to investigate and present available evidence that Carter had not intentionally killed Tomlin. However, the Court of Criminal Appeals did not grant an evidentiary hearing on that claim.

(M. Mitchell, “Appeals court orders review in Fort Worth death penalty case,” Associated Press, September 27, 2017.) Read the Texas Court of Criminal Appeals order remanding Tilon Carter’s case here. See Upcoming Executions.

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