In death penalty cases, the legal system is put to its sternest test. It needs to treat people fairly, even those people accused of doing horrible things. All too often, it fails.
Robert Roberson knows this that all too well. More than two decades ago, he was convicted of murdering his chronically ill two-year-old daughter Nikki. Crucial to that conviction was expert testimony on so-called “shaken baby syndrome.”
If it’s left to Texas Attorney General Ken Paxton, who recently made an unprecedented intervention in the case, Roberson could be dead by the time his appeal is heard. And what Paxton wants to do could affect how death penalty cases are handled in other states that practice capital punishment.
Since then, Roberson has been on death row. But scientific discoveries, along with new evidence, have cast significant doubt on his conviction. Nonetheless, if it’s left to Texas Attorney General Ken Paxton, who recently made an unprecedented intervention in the case, Roberson could be dead by the time his appeal is heard. And what Paxton wants to do could affect how death penalty cases are handled in other states that practice capital punishment.
Since Roberson’s conviction in 2003, shaken baby syndrome has been discredited, and “medical experts have…determined [Nikki] died from severe viral and bacterial pneumonia that doctors failed to diagnose, not from abuse…”
As the Death Penalty Information Center notes, “at least 41 parents and caregivers across 21 states and the military have been exonerated since 1992 after being wrongfully convicted based on the ‘Shaken Baby’ hypothesis.”
Roberson was supposed to be executed last October. But he was saved when the Texas Supreme Court granted a stay so he could respond to a subpoena issued by the House Committee on Criminal Jurisprudence, which was investigating his case.
He never got to testify because the Texas Attorney General’s Office intervened and objected. The state’s high court later ruled that legislative subpoenas should never again “be allowed to interfere with a scheduled execution.”
Late last year, the House committee released its interim report. It concluded that Roberson’s case “highlighted not just an individual injustice, but the unfulfilled promise of what was intended to be a pioneering Texas law” that would allow courts to set aside convictions when scientific evidence used in those cases is later discredited.
In February, Roberson’s lawyer cited those findings when they asked the state’s Court of Criminal Appeals to consider new evidence “explaining why the conclusions of the medical examiner who performed the 2002 autopsy are deeply flawed and unreliable.”
Roberson’s habeas corpus petition argued that “new evidence shows (1) no rational juror would find Roberson guilty of capital murder; and (2) unreliable and outdated scientific and medical evidence was material to his conviction.”
That is where things stood in this already troubling test of the Texas criminal justice system. But Paxton was not content to wait for the courts to do their work, so he intervened again.
Earlier this month, he took over the Roberson case, a responsibility usually carried by a local district attorney. He acted on a request from Anderson County District Attorney Allyson Mitchell.
Paxton’s takeover was highly unusual. Such an action generally happens only “when prosecutors have a conflict of interest or lack the resources or expertise to handle a particular case.” Neither applies to Mitchell, who dealt with Roberson’s case.
Before taking over the case, Paxton released the original autopsy report on Nikki’s death and a 2016 letter from the medical examiner who conducted the autopsy. Neither are standard prosecutorial practice.
At the time, Paxton said, “Roberson had a history of sexually and physically abusing [Nikki]… and her mother. [Nikki] was sent to the hospital in 2002 with a handprint on her face and bruises on her shoulder, face, ears, and the back of her head.”
His comments were significant — and prejudicial. Even worse, on June 16 Paxton asked a trial judge to set a new execution date for Roberson — without waiting for the Court of Criminal Appeals to decide on his habeas corpus petition. That date can be set no sooner than ninety days from the date of Paxton’s request.
In other words, Robert Roberson is now in a race against the clock.
This kind of jumping the gun is not the way things typically go in death cases, even in a state like Texas, which has a reputation for eagerly enforcing the death penalty. But there is something about Roberson’s case that triggered Paxton to take unusual steps.
In a filing opposing Paxton’s request, Roberson’s lawyer pointed to “new evidence of innocence” that could upend his client’s conviction and noted that Texas law gives a “district court the discretion not to set an execution date under the circumstances presented here.”
The trial court should use that discretion. It should let the legal process take its course and refuse Paxson’s request.
We need your help to stay independent
Roberson’s lawyer rightly concludes that “setting a date at this juncture would further no legitimate purpose and would instead be contrary to state law, judicial economy, and the interest of justice.” And it might also spare the life of a man who was likely wrongfully convicted.
It’s not clear how the judge will ultimately rule. But if Paxton succeeds in convincing the court to set an execution date, the decision would limit Roberson’s rights in any subsequent appeal. As the American Bar Association explains, in recent years, “capital jurisprudence has evolved to make it even more difficult for prisoners under execution warrant to receive in-depth review of their legal claims…”
This further tips the scales of justice in favor of the prosecution in capital cases and, in cases where an innocent person’s life is on the line, it may make it almost impossible to right even the most grievous wrongs.
The courts in Texas should see Paxton’s ploy for what it is: An attempt to quash the due process rights of an American citizen. Their refusal to intervene and put a stop to Roberson’s execution would set a dangerous national precedent. Prosecutors in death penalty states like Oklahoma, Florida and Alabama could follow his lead by cutting corners in capital cases.
In the end, all Americans will lose if the Texas trial court goes along with the state’s ardently pro-death penalty attorney general and sets such a troubling example.
