Last night, Texas death row inmate Robert Roberson narrowly avoided becoming the first person in the country to be executed based on evidence of what was formerly called “shaken baby syndrome,” due to an unprecedented intervention by a bipartisan group of Texas lawmakers.
Efforts by Roberson’s supporters to halt his imminent execution spilled over into a battle between the branches of the Texas government Thursday night after a state House committee issued a subpoena to Roberson to testify before it next Monday—a highly unusual move that had the practical effect of putting him under the aegis of the legislature’s subpoena authority.
A state district court issued a temporary stay of execution based on that subpoena, but the Texas Court of Criminal Appeals (CCA), the state’s highest court for criminal cases, lifted the stay after the Texas Attorney General’s Office appealed it. However, Texas legislators filed an emergency motion with the Texas Supreme Court, which has jurisdiction over civil matters, asking it to issue an injunction against the Texas Department of Criminal Justice to halt Roberson’s execution. The Texas Supreme Court granted the injunction, preserving Roberson’s life for now.
This all occurred hours before and after Roberson’s scheduled 6 p.m. execution by lethal injection.
“For over 20 years, Robert Roberson has spent 23.5 hours of every single day in a solitary confinement cell no bigger than the closets of most Texans, longing and striving to be heard,” Democrat and Republican state Reps. Joe Moody and Jeff Leach, respectively, said in a joint statement on X after the Texas Supreme Court ruled in their favor. “And while some courthouses may have failed him, the Texas House has not.”
“We look forward to welcoming Robert to the Texas Capitol, and along with 31 million Texans, finally giving him—and the truth—a chance to be heard,” the lawmakers continued.
The baroque 11th-hour legal drama underscores the divisiveness of Roberson’s case and the intensity of the dispute surrounding shaken baby syndrome convictions. As Reason reported this August, Roberson was convicted in 2003 of murdering his two-year-old daughter based largely on expert findings of shaken baby syndrome, which is now called Abusive Head Trauma (AHT).
However, the scientific consensus surrounding AHT has shifted considerably in the decades since Roberson’s conviction, and his attorneys argue that the forensic testimony at his original trial has now been discredited, both by advances in science and by previously undiscovered autopsy records that show Roberson’s daughter died of advanced pneumonia. In addition, Roberson was subsequently diagnosed with autism, which his lawyers say led to doctors and police misinterpreting his behavior as callous.
Among those who believe in Roberson’s innocence—or at least believe there’s reasonable doubt of his guilt—are the former detective who arrested him, novelist John Grisham, and Supreme Court Justice Sonia Sotomayor, who urged Texas Gov. Gregg Abbott to grant Roberson a 30-day reprieve in a statement accompanying the Court’s denial of relief. The New York Times also reported that “more than half of the Republican-dominated Texas House has lobbied for the case to be reviewed.”
“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,” Gretchen Sween, one of Roberson’s attorneys, said in a press release. “He lives to fight another day and hopes that his experience can help improve the integrity of our criminal legal system.”
Without Texas lawmakers’ intervention, it would have been the end of the road for Roberson. Texas Gov. Greg Abbott denied his clemency petition, and the U.S. Supreme Court likewise declined to stay his execution.
Roberson’s unusual reprieve came after the Texas Committee on Criminal Jurisprudence issued a subpoena for him at the conclusion of a hearing Wednesday. That hearing examined the effectiveness of a law that Texas legislators passed specifically to address innocence claims in cases like Roberson’s.
In 2013 Texas became the first state in the country to pass a law allowing inmates to challenge convictions based on outdated or debunked forensic methods. But defense lawyers and innocence groups say courts have failed to faithfully apply the so-called “junk science writ,” and not a single death row inmate in Texas has successfully obtained relief through the statute.
A July report by the Texas Defender Service, the first comprehensive review of the junk science writ, concluded that the “law systematically fails to provide relief to innocent people convicted based on false forensic evidence.”
“That is inappropriate, that is improper,” Moody told the Houston Chronicle. “And if that is the case it is absolutely within the Legislature’s jurisdiction and within our power to be able to look into that. And that is the crux of why we need Mr. Roberson to testify.”
The writ already saved Roberson from a trip to the execution chamber once. In 2016, the CCA granted Roberson a stay of execution to allow him a hearing to challenge his conviction on both actual innocence grounds and under the junk science writ.
Yet a trial court and the CCA both denied Roberson relief and agreed with prosecutors that because the experts at Roberson’s trial had not exclusively relied on an AHT diagnosis but a combination of shaking and blunt impacts, the state’s cause-of-death theory had not been disproven.
This summer the CCA summarily dismissed Roberson’s new petitions without considering the expert testimony based on new medical records, even as it overturned a conviction in another AHT case that featured testimony from one of the same expert witnesses as in Roberson’s trial.
Prosecutors and pediatric abuse specialists say there’s broad scientific consensus around AHT, but innocence groups and advocates for forensic reform have successfully persuaded several state courts otherwise. According to the National Registry of Exonerations, at least 34 parents and caregivers in 18 states convicted based on AHT evidence have been exonerated.
“Starkly put, Texas’s legacy as a leader in recognizing the critical role that advances in scientific and medical evidence used in criminal cases plays in ensuring the reliability, fairness, and legitimacy of the criminal justice system is at risk if Mr. Roberson’s scheduled execution is allowed to proceed,” his lawyers argued.
Whatever happens next, Texas lawmakers have ensured the public will see something unprecedented and important: a condemned man testifying before a state legislature on the laws and procedures used to secure his own destruction.
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