UPDATE, Nov. 15, 12:30 p.m.: Five days after his birthday on Nov. 10, the Texas Supreme Court lifted Robert Roberson’s stay of execution, allowing the state of Texas to move forward with the execution.
UPDATE, Oct. 18, 6:33 a.m.: In a shocking late night decision, the Texas Supreme Court has stayed Robert Roberson’s execution.
Roberson “praised God and thanked his supporters” when he was informed, said Amanda Hernandez, the director of communications for the Texas Department of Criminal Justice.
There were still many open questions on Friday morning, but two things were certain: Roberson is alive for now — and it’s only because a bipartisan group of Texas lawmakers employed the unprecedented, novel strategy of issuing a death row inmate a subpoena to testify next week. Though a temporary restraining order was granted in a district court, the state filed to the court of criminal appeals asking for the subpoena to be thrown out. State representatives Joe Moody (a Democrat) and Jeff Leach (a Republican) took the unusual step of appealing once more to the Texas Supreme Court. Even the temporary delay required extraordinary effort, creativity, and Herculean persistence.
“The vast team fighting for Robert Roberson — people all across Texas, the country, and the world — are elated tonight that a contingent of brave, bipartisan Texas lawmakers chose to dig deep into the facts of Robert’s case that no court had yet considered and recognized that his life was worth fighting for,” said Roberson’s lawyer, Gretchen Sween, in a statement late Thursday evening. “He lives to fight another day and hopes that his experience can help improve the integrity of our criminal legal system.”
In a joint statement on Thursday, Moody and Leach said, “For over 20 years, Robert Roberson has spent 23.5 hours of every single day in solitary confinement in a cell no bigger than the closets of most Texans, longing and striving to be heard.”
“And while some courthouses may have failed him, the Texas House has not,” the statement said. “We’re deeply grateful to the Texas Supreme Court for respecting the role of the Texas Legislature in such consequential matters.”
Roberson was scheduled to die just hours before the decision came down, and he would have been put to death already, were it not for the actions of Moody and Leach. Roberson’s team, which included assistance from the Texas Innocence Project, had tried repeated requests to the Court of Criminal Appeals, the Texas Board of Pardons and Paroles, the U.S. Supreme Court, a judge in Anderson County, and a string of public petitions to Gov. Greg Abbott. All had said no — or in Abbott’s case, refused to comment or engage on the issue to-date.
In its denial, the U.S. Supreme Court said on Thursday night that its hands were tied over jurisdiction — but validated that “under these circumstances, a stay permitting examination of Roberson’s credible claims of actual innocence is imperative” and urged the governor to exercise his executive powers to “prevent a miscarriage of justice.”
UPDATE, Oct. 17, 6:08 p.m.: The U.S. 200th District Court on Thursday granted a temporary restraining order, delaying Robert Roberson’s 6 p.m. execution after state lawmakers subpoenaed Roberson to appear in a committee hearing. The restraining order delays the execution to at least Oct. 21 — the date of the hearing at which he has been requested to appear. The state’s attorney, Ed Marshall, said at the hearing that they would immediately appeal the decision to the Court of Criminal Appeals, despite the fact that it’s a civil case. Though the delay has kept him from getting executed on schedule, Roberson’s life still hangs in the balance. As soon as the state appeals, as Marshall has said they will, the court of criminal appeals could rule. To-date, they have denied all requests from Roberson’s team.
The plaintiffs in the Travis County filing were listed as The Texas House of Representatives; (state) Representative Joe Moody, Chairman of the Committee on Criminal Jurisprudence of the House of Representatives of the State of Texas; and (state) Representative Jeff Leach. The defendants were listed as the Texas Department of Criminal Justice, and Texas Department of Criminal Justice Correctional Institutions Division. As the subpoena is an unprecedented method for delaying an execution, lawyers and journalists alike were trying on Thursday to make sense of the results. Marshall, admitted in court that the House subpoena was valid but has maintained that the court of criminal appeals is the prevailing court on Roberson’s case.
Around the same time on Thursday, the U.S. Supreme Court said it was unable to grant a stay of execution in Roberson’s case.
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With just hours left before he’s put to death, all appeals to delay Robert Roberson’s impending execution have thus failed. One last brief filed to the U.S. Supreme Court — and a novel strategy from state legislators — are his last glimmer of hope.
Roberson’s case, which involves discredited science, has gained international attention because he could be the first person ever put to death for “shaken baby syndrome.” At least 30 other shaken baby cases, many with lower stakes, have been cleared in recent years.
The legal team representing Roberson, including support from the Innocence Project of Texas, has attempted multiple avenues to either stay Roberson’s execution or get him a new trial in recent days. Two of those efforts occurred at the same time on Tuesday morning: a hearing with a regional administrative judge in Palestine and a meeting of the Texas Board of Pardons and Paroles in Austin.
Neither worked. Presiding Judge Alfonso Charles dismissed attorney Gretchen Sween’s arguments that Roberson’s judge was improperly appointed or judicially biased. The Board of Pardons and Paroles declined to stay Roberson’s execution, set for 6 p.m. CT on Oct. 17 in Huntsville. The board’s decision was released late Wednesday afternoon.
Roberson has spent 22 years on death row for the death of his 2-year-old daughter, Nikki Curtis. At the time, doctors in Palestine and at the Dallas County medical examiner’s office decided that Roberson had abused his daughter because she exhibited symptoms linked to so-called shaken baby syndrome, which was long ago discredited. But in the years since the trial, Roberson’s attorneys — and various independent experts — have called that a misdiagnosis, a conclusion that should have triggered a new trial under the state’s so-called “junk science” law.
“He was demonized at every phase — by the hospital staff, by law enforcement, by the DA’s office,” Sween has said. “I mean, they created this story about this monster that does not exist.”
Late Tuesday, a bipartisan group of lawmakers filed a new brief with the state’s Court of Criminal Appeals, begging them to stay Roberson’s execution and asking for a chance to fix the junk science law next legislative session. But less than a day later, the state’s highest criminal appeals court denied that request. The Court of Criminal Appeals has denied multiple petitions, including the one filed by lawmakers, citing procedures in the law.
In Anderson County on Tuesday, Sween dropped her head and wept after the judge rejected her arguments and adjourned the hearing. As she left the courtroom, Sween said through tears: “I’m not giving up.”
Sween, who has represented Roberson for nearly ten years, has said that he is an earnest man who sometimes has trouble getting words out because of his speech impediment. Roberson was diagnosed with autism only after he was sent to death row. His biggest supporter, his mom, passed away.
“I’m enraged,” Sween said outside the courthouse. “I’m heartbroken.”
The official avenues left are Gov. Greg Abbott or the U.S. Supreme Court. Abbott can only give Roberson a 30-day reprieve if he chooses to act on the case, and he has only intervened once before. In that case, he commuted Thomas Whitaker’s death sentence to life in prison in 2018 at the request of Whitaker’s father. Thomas Whitaker was convicted of murdering his mother and brother in 2003.
In one last emergency effort, Roberson’s attorneys filed a brief to the U.S. Supreme Court on Wednesday afternoon, arguing that the court’s invocation of such a technicality has denied Roberson his due process.
In a petition addressed to Justice Samuel Alito, they wrote asking the court to consider “whether a state’s highest criminal court, in summarily finding a procedural bar to merits review, when that finding is contrary to both state law and the facts, and when the death-sentenced individual has adduced substantial evidence of actual innocence, violates the federal constitutional right to due process.”
The Court of Criminal Appeals, in a statement, insisted it has no basis to review Roberson’s case, no matter how many writs of habeas corpus his legal team files.
A New Strategy
Outside of the usual avenues, legislators joined the fight with a novel strategy. Late Wednesday, Roberson was subpoenaed to testify before the Texas Committee on Criminal Jurisprudence, which is reconsidering the lawfulness of his conviction.
The committee scheduled the hearing for October 21, in an apparent attempt to force a delay, and a spokesperson for the state’s Department of Criminal Justice told CNN it would consult with Texas Attorney General Ken Paxton’s office on “appropriate next steps.” The subpoena reportedly requests that Roberson “provide all relevant testimony and information concerning the committee’s inquiry.” Lawmakers told CNN they were not confident that the execution would be delayed but were “hopeful.” State representatives Brian Harrison and Jeff Leach were two of seven bipartisan representatives who voted in favor, and the subpoena was presented to Roberson’s attorney on Wednesday afternoon, according to the report.
Those extraordinary efforts, however remarkable, match the extraordinary conditions of his case. In support of Roberson’s petition to the Texas Board of Pardons and Paroles, the former chief of detectives who led the investigation — and testified against him in 2002 — admitted he got it wrong. Brian Wharton, now a pastor for the United Methodist Church, said he was “never comfortable with the conviction.”
“The fact that Robert is autistic was established only years later,” he added. “It would have been appropriate for a jury to know about his autism as they considered Robert’s reported response to his daughter’s injury and death, as well as his courtroom demeanor.”
In the past several years, Wharton has fought to stop the execution.
“The case against Robert has no foundation in physical evidence of any kind,” Wharton wrote in his letter. “We have moved well beyond a reasonable doubt. There is no evidence of a crime, much less a capital crime.”
Despite this plea — and many others — Roberson’s clemency petition to the board was denied. The petition argued that both law enforcement and physicians missed Roberson’s toddler’s undiagnosed pneumonia, as well as the fact that medical professionals gave her drugs now known to be dangerous to children. Still, the board voted unanimously not to recommend a reprieve.
“It is not shocking that the criminal justice system failed Mr. Roberson so badly,” Sween said in a statement on Wednesday. “What’s shocking is that, so far, the system has been unable to correct itself — when Texas lawmakers recognized the problem with wrongful convictions based on discredited ‘science’ over ten years ago.”
In addition to the attempts through the board of paroles, court of appeals, and U.S. Supreme Court, Roberson’s team has not given up on Abbott. Texas exonerees and an autism advocacy leader delivered more than 116,000 petition signatures to the governor on Wednesday urging him to stop Roberson’s execution.
In a statement to The Barbed Wire, Sween also noted that, just last week, the Court of Criminal Appeals vacated the conviction of another man, Andrew Wayne Roark, who was tried in 2000 using the same shaken baby hypothesis and using the same expert used by the prosecution in Roberson’s case.
“The flawed testimony in both cases was virtually identical,” Sween said. “If Mr. Roark was given a new trial, Mr. Roberson must also be given a new trial.”
Sween and Wharton are joined in their requests by eminent scientists and doctors, advocates for parental rights, organizations that advocate for people with autism and their families, faith leaders, innocence advocacy groups, former judges, and dozens of attorneys who have represented the wrongfully accused, along with best-selling novelist John Grisham.
In a recent interview with NBC Nightly News anchor Lester Holt, Roberson appealed to Abbott directly: “Governor Abbott, I did not do this and I’m just hoping and praying that you do the right thing.”
Roberson told Holt: “I’m at peace if it happens, but I’m not ready because I don’t think I should be executed when I’m innocent.”
