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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