Robert Roberson's death row case raises questions about the justice of the death penalty

The legal battle over Texas death row inmate Robert Roberson and a subpoena requiring him to testify before the Texas House of Representatives Criminal Justice Committee continues.

Texas Attorney General Ken Paxton is preventing Roberson from testifying in person. It is unclear whether and when he will testify. Yet that subpoena is the reason Roberson is still alive today. It also raised the question: Are Texas courts ignoring Roberson's evidence of innocence?

On October 17, anti-death penalty demonstrators protested the impending execution of Robert Roberson outside the Walls Correctional Unit in Huntsville. They gather there every time an execution takes place, but this time they had a much larger audience.

News media broadcasting live from the scene was set up to cover the biggest story in Texas and what could be Roberson's final hours.

Executions in Texas typically receive little media attention. But that changed when a bipartisan group of state lawmakers said Roberson was probably innocent of murdering his 2-year-old daughter, Nikki.

Prosecutors had said Nikki died of what was revealed to be shaken baby syndrome. Experts believe it is more likely that she died of pneumonia and Roberson is innocent. But Texas was still determined to execute him.

The courts refused to hear new exculpatory evidence. Governor Abbott refused to grant Roberson a 30-day reprieve. And Attorney General Paxton fought for Roberson's execution despite the subpoena.

“My experience with governors and attorneys general is that they take a tough stance on enforcing sentences,” said Sam Bassett, an Austin-based criminal defense attorney. He said their argument was that the justice system needs finality in sentencing, but the death penalty, he said, should be held to the highest standards.

“I think the death penalty is the ultimate sanction, the ultimate punishment. And it is irreversible once executed. And you can't say later, “Oops, we got that wrong.” “The person is already in the grave,” he said.

Kristin Houle Cuellar is executive director of the Texas Coalition to Abolish the Death Penalty. She said it's clear that Abbott, Paxton and the Texas Court of Appeals don't hold the death penalty to a high standard at all.

“The Robert Roberson case exposes everything that is wrong with the Texas death penalty system,” Cuellar said

And she added that there were several problems with Roberson's case. “And that includes the completely incompetent legal representation during his trial in 2003. [There was] a rigid and indifferent judiciary that has so far refused to examine the overwhelming scientific evidence of his innocence, despite a Texas law created for precisely that purpose. This includes a pardon and parole board that operates without transparency,” Cuellar said.

Cuellar said there are so many troubling questions about this case that every Texan should reconsider their opinion on the death penalty.

“We know with certainty that innocent people have been sentenced to death in this state, and we also have substantial evidence that people have been executed despite strong protestations of innocence,” she said.

But pollster Jim Henson of the Texas Politics Project says that doesn't matter to many Texans.

“One of the things we did regularly was to ask people directly, 'How often do you think people are wrongfully convicted of capital punishment in the state of Texas?' And what we found is that only 28% say “never” or “almost never,” but also only 14% say “very often.” The plurality – about half [or] 46% say “occasionally” it happens occasionally,” Henson said.

Henson noted that although about half of Texans say Texas occasionally executes innocent people, they are still largely in favor of the death penalty, although support for the death penalty has fluctuated in recent years.

“Support for the death penalty began to rise slightly in the early 1920s, from about 63% in mid-2021 to 69% again in December 2023,” he said.

Henson did not believe that reporting on Roberson would change the minds of Texans, despite claims that that state was prepared to kill a likely innocent man.

He said it was a single news event in a noisy media environment with the election primarily taking center stage. For public opinion to change, there would have to be more Robert Robersons and bigger questions about the justice of the death penalty in Texas.