Last Friday, a cloudless, azure sky framed the Allan B. Polunsky prison unit — where 167 men await executions on Texas’ Death Row — as an unlikely group ventured through its doors in the name of salvation.
Polunsky is the state’s supermax prison for the most egregious criminal offenders in Texas and, for decades, the home of one of the nation’s most infamous Death Rows. Outside, a half-dozen horses grazed in an adjacent field off the prison’s rural farm road. The lawn was freshly cut. Inside, inmates sat alone in single concrete cells, cut off from each other and the outside world.
Reprieves from Death Row in Texas are rare. So are bipartisan initiatives. But this was a special case.
Six lawmakers from the Texas House — two Republicans and four Democrats — arrived in Huntsville in the early afternoon on Sept. 27 in a last-ditch effort to raise awareness for the plight of 57-year-old inmate Robert Roberson, who was convicted in 2003 of murdering his two-year-old daughter Nikki on the basis of long-since-debunked “junk science.”
For lawmakers, the afternoon included a lot of prayer, before, during and after meeting Roberson. To that end, they brought along Scot Wall, who serves as the legislature’s non-denominational minister in the Texas Capitol Commission.
They met with Roberson in a room without plexiglass or barriers, sitting in a circle. The lawmakers — in suits and ties, coiffed hair, and dress shoes — hoped to learn enough to humanize Roberson to the press and to their constituents. His bright blue eyes warmed when he smiled from his plastic folding chair, and they popped against the prison’s customary white jumpsuit.
“He inspired us to come out here and make sure — whether he has 20 days or he gets that trial and has a full life ahead of him — that we continue to share his message and fight for the youth that are within our system and for other people moving forward,” said Rep. John Bucy, D-Austin, talking to a handful of news outlets, including The Barbed Wire, after the 90-minute meeting. “We’re here just to tell that story and to share his love for the community and his expression of hope.”
Roberson’s lawyers have all but exhausted appeals to delay his Oct. 17 execution date or get a new trial to reconsider what many — including the case’s original detectives and famed author John Grisham — now believe to be a faulty conclusion. At the time of his conviction, the Dallas County medical examiner said Roberson shook his child to death.
Brian Wharton, the former chief of detectives for the Palestine police department told KVUE that he made “some assumptions about Robert” when he was investigating the case in 2002. “I’m embarrassed about myself that I did not see him as he is. Back then, it might have changed something.” He believed the medical examiner and a pediatrician. “I will forever be haunted by my participation in his prosecution, his arrest and prosecution,” Wharton told reporters. “I am firmly convinced that Robert is an innocent man.”
The lawmakers who visited Roberson last week were part of a group of 86 who’d signed a letter in support of a clemency petition. They’ve asked for Roberson’s death sentence to be commuted — or to delay the execution 180 days in a bid to give the Texas Board of Pardons and Paroles and Gov. Greg Abbott time for “appropriate consideration” of his innocence. They voiced “grave concern” that Texas was going to execute Roberson “for a crime that did not occur.” The lawmakers cited “voluminous new scientific evidence.”
If Roberson goes to the death chamber, he will be the sixth man killed by the state this year. He follows Garcia Glenn White, who confessed to five murders and was convicted of stabbing 16-year-old identical twins Annette and Bernette Edwards in Houston in 1989.
“I would like to apologize for all the wrong I have done, and for pain I’ve caused to the Edwards family. I regret, I apologize, and I pray that you can find peace, comfort and closer in your heart for the wrong I have done and the pain I have caused you, and anybody else I’ve caused pain to,” said White, 61, in his last statement before he was put to death on Tuesday. “I just want to apologize; I take responsibility for it.”
Roberson’s case has received a last-minute jolt of public attention after last week’s execution, in Missouri, of Marcellus Williams. Williams had for decades maintained his innocence in the 1998 stabbing death of Felicia Gayle, per CBS News. St. Louis County Prosecuting Attorney Wesley Bell had sought to have the conviction overturned. Even the jurors on the original case opposed the execution.
The U.S. Supreme Court had, hours before Williams’ death, rejected a request to delay, despite dissents from Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, who said they would have granted it.
“Tonight, Missouri will execute an innocent man,” attorney Tricia Rojo Bushnell, of the Midwest Innocence Project, told CBS News. “The prosecutor’s office that convicted and sentenced him to death has now admitted they were wrong and zealously fought to undo the conviction and save Mr. Williams’ life.”
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Concerned lawmakers, celebrities, and advocates fear that Roberson is headed for the same fate.
In 2013, lawmakers created a pathway for defendants like Roberson to get a new trial, making Texas the first state to create such a legal avenue. Article 11.073 of the Texas Code of Criminal Procedure, the state’s so-called junk science law, allows prisoners to challenge convictions by showing that scientific changes undermined their trials or exonerated them. Theoretically, the Court of Criminal Appeals can call for a new trial when a defense team identifies faulty and debunked forensic conclusions. The court, however, rarely has taken action on the law — and never with a Death Row inmate.
Mike Ware, executive director of the Texas Innocence Project, theorizes the lack of action turns on the court’s interpretation of a single phrase in the statute: “a preponderance of the evidence.” A decade of the statute, in practice, has proven it’s not enough to point out faulty science.
“I can name you a bunch of cases where everybody agrees the person’s innocent. Everybody agrees junk science was used to convict this innocent person,” Ware said. “But if they had not had three or four additional points that also showed the person’s innocence, the court would not have exonerated them.”
Last month, the court passed on taking up Roberson’s case, shutting down Roberson’s appeal without considering the 300 pages his lawyers compiled to argue its merits. Gretchen Sween, one of Roberson’s attorneys, calls the junk science law “an empty vessel.”
“Anybody that looks at the record we created should see that we more than proved he should get a new trial, but then the courts ignored all the evidence,” Sween said. “Even if you do what you’re supposed to do — and there’s a law on the books — the court doesn’t apply the law to the facts.”
House lawmakers, members of the bipartisan Criminal Justice Reform Caucus, were more successful with efforts to potentially free Death Row inmate Melissa Lucio, who was convicted of killing her 2-year-old daughter Mariah in Cameron County in 2008. The Court of Criminal Appeals stayed Lucio’s execution and a district judge recently recommended her conviction be overturned after the district attorney’s office admitted evidence was withheld from her defense.
Roberson’s lawyers argued that Nikki Curtis, Roberson’s 2-year-old toddler, died from a combination of underlying and chronic health conditions. Nikki’s medical history included multiple caregivers, at least a dozen visits to the pediatrician, and multiple trips to the emergency room for fever and ear infections. Despite the pleas from lawmakers, the junk science, and the reversal from Wharton, the medical examiner who completed Curtis’ autopsy hasn’t budged. Neither has the district attorney who pursued the charges.
The only avenue Roberson has left to avoid the death chamber is the Board of Pardons and Paroles, which makes recommendations to the governor. Roberson’s clemency petition with the board argues both law enforcement and doctors missed the fact that his daughter had a fever of 104.5 degrees and undiagnosed pneumonia. The petition notes that she was given drugs, which are now deemed life-threatening for kids. The board has not yet voted on whether to recommend clemency.
That said, Roberson has received reprieves before. In 2016, Roberson’s execution date was stayed when his attorneys successfully argued “shaken baby syndrome” was “junk science,” condemning the conviction for being built on “false, misleading, and scientifically invalid testimony.”
The reconstituted Texas Forensic Science Commission, which has previously served as a route to clear murder convictions involving outdated arson and blood evidence, has rules that exclude actions on forensic pathology, said Gretchen Sween, one of Roberson’s current lawyers.
“That is an area that really needs a lot of reform right now,” Sween told The Barbed Wire.
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Roberson is a quiet man, a man some of his classmates bullied. In an interview with the New York Times, one friend described him as simple, having a “Forrest Gump” quality. He would be in prison for 15 years before he was finally diagnosed with autism.
Abused by his father early in his life, Roberson dropped out of high school in Palestine in the ninth grade. A brief marriage, two children, and mutual addiction followed. Roberson spent time in prison for burglary and bad checks, and he had to fight to prove his paternity of Nikki, who was taken away from her mother at birth because of drug issues.
“Robert is an autistic man who earned his living delivering paper routes,” Sween said. “He was doing everything he could to do right by this child, and that included following the advice of doctors who missed her pneumonia and gave her terrible medications that would have likely killed her if she hadn’t been so sick.”
Nikki was a victim, but so was Robert, Sween said. Roberson was thrown in jail and put in a suicide cell before there was even an autopsy completed.
“He was demonized at every phase — by the hospital staff, by law enforcement, by the DA’s office,” Sween said. “I mean, they created this story about this monster that does not exist.”
Roberson is not a threat, Sween said. He’s earnest. He’s dutiful. Sometimes he has trouble getting words out because of his speech impediment.
“You know how some people say, ‘I’m this way at work, and I’m this way with my friends’?” Sween said. “That is not Robert. Robert is one thing all the time. He is profoundly earnest, and he believes everything he’s told. You tell him he can take one Bible study, and he’s taken over 60 Bible study classes in prison. Anything they let him take, he will.”
“This is a lot of weight, a lot of heaviness that sits on a situation like this, you know?” state Rep. Joe Moody, D-El Paso, told The Barbed Wire. “Even if you have been through this before — which most of our members have not — you’re trying to find the clarity of mind, the clarity of heart to do the right thing.”
“That is a man who is grateful for the time that we had to spend today,” Moody told reporters. “He told us this is a day that he would never forget, and I can assure you it is a day we will never forget.”
