The federal appeals court based in Denver concluded on Tuesday that a pair of trial judges wrongly declined to evaluate the innocence claim of a man convicted in 2006 for the killing of a 21-month-old child.

The refusal was seemingly based on a misunderstanding of when new evidence surfaced in Robert Edward Hill’s case.

A Jefferson County jury originally found Hill guilty of murder and child abuse resulting in death. Hill’s girlfriend left her daughter in Hill’s care, but returned to find the child unresponsive. The girl suffered internal bleeding, and Hill’s attorney decided to argue that someone else was responsible for the injuries.

Hill appealed his conviction unsuccessfully, then sought postconviction relief in state court. When he reached the end for his appeals, Hill filed a habeas corpus petition in federal court asserting, among other things, there was evidence of his innocence that would have changed the outcome at trial if jurors had heard it.

Specifically, expert witnesses testified in Hill’s postconviction proceedings that the child suffered from a bleeding disorder that would have explained her injuries and mimicked signs of child abuse.

Case: Hill v. Long

Decided: September 5, 2023

Jurisdiction: U.S. District Court for Colorado

Ruling: 3-0

Judges: Joel M. Carson III (author)

Robert E. Bacharach

Nancy L. Moritz

Background: Child dies at Children’s Hospital, mother’s boyfriend facing charges

In April 2022, then-U.S. Magistrate Judge Gordon P. Gallagher recommended dismissing Hill’s petition.

“Mr. Hill asserts he is actually innocent, but he has not presented any new and reliable evidence to support a claim of actual innocence,” wrote Gallagher. Apparently, out of confusion about when the expert witness testimony occurred, Gallagher believed Hill only cited to “trial transcripts” but nothing since then.

U.S. District Court Senior Judge Lewis T. Babcock upheld the recommendation and dismissed the case.

On appeal, Hill, representing himself from prison, acknowledged Gallagher may have mixed up the timing because Hill’s postconviction hearing and his jury trial took place almost exactly 10 years apart.

“Nonetheless, the court is responsible for knowing what it is basing its ruling on, and Mr. Hill asks that this court please be more cautious in its review, and understand that it is the postconviction testimony that clearly establishes” actual innocence, he wrote to the U.S. Court of Appeals for the 10th Circuit.

In a Sept. 5 order, a three-judge panel for the 10th Circuit agreed Gallagher and Babcock had wrongly turned aside Hill’s innocence claim based on a mistaken belief that the expert testimony occurred at trial, not after it.

“No doubt this was nothing more than an oversight; however, the district court’s erroneous finding means that it never considered whether – based on the new evidence and its review of the record as a whole – it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt,” wrote Judge Joel M. Carson III.

The panel returned the case to the trial court for a review of Hill’s claim that new evidence would show his innocence.

The case is Hill v. Long et al.