The State of Texas has more than probably executed ten innocent people since the State resumed executions in 1982. Today, the State, through yet another overzealous district attorney, is preparing to execute yet another man who is more than probably innocent.
On June 17, 2024, Anderson County District Attorney Allyson Mitchell filed a motion to set an execution date of October 17, 2024, for Robert Roberson, who has been on death row for more than 20 years. Roberson was convicted and sentenced to death in 2003 for the January 2, 2002 “shaking death” murder of his two-year-old daughter, Nikki Curtis.
In the decades since Roberson’s conviction, the Shaken Baby Syndrome (SBS) has fallen into scientific disrepute. According to the National Registry of Exonerations, at least 34 people convicted of SBS have been exonerated across the nation.
In 2013, the Texas Legislature became the first State to enact a “junk science” law that became known as “junk science writ.” The law was codified in Article 11.073 of the Texas Court of Criminal Procedure and allows people to challenge their conviction through a Writ of Habeas Corpus if new scientific evidence debunks the scientific evidence upon which their conviction was based. The person must show that:
The law allows for the trial court to evaluate the new scientific evidence to determine the reliability of a prisoner’s conviction.
Robert Roberson was facing an execution date in 2016 when the Texas Court of Criminal Appeals (CCA) ordered an evidentiary hearing under the junk science writ on the SBS issue.
Writing in the September 9, 2024 edition of The Intercept, journalists Liliana Segura and Jordan Smith described what happened next:
“… During a nine-day evidentiary hearing, Roberson’s lawyers laid out the flaws that had led to his wrongful conviction, including the fact that SBS had been debunked and that the medicines prescribed to Nikki had likely made her condition worse. Nevertheless, the trial court rejected Roberson’s claim, ignoring the wealth of evidence that he was innocent — and that Nikki’s death was related to her previous illness and not to any abuse. The Texas Court of Criminal Appeals then signed off on the court’s ruling and cleared the way for Roberson’s execution.”
Roberson became one of 25 Texas death row inmates who have unsuccessfully challenged their convictions under the junk science writ law, according to the Texas Defender Service (TDS).
However, the CCA in 2018 in Ex parte Chaney—a case in which Steven Mark Chaney had been convicted for a 1987 double murder in Dallas County and sentenced to life imprisonment based on junk science “bite mark” evidence—found that the junk science was not only flawed but that Chaney had established his “actual innocence” of the double murders.
The Chaney decision notwithstanding, the TDS and scores of other people believe the junk science writ law “is not operating as the Texas Legislature intended” in 2013, especially in the Robert Roberson case. One of those people is Brian Wharton, the lead detective who built the case against Roberson and now believes he is innocent. Now an ordained minister, Wharton has told the trial court and the media that:
“I was a police officer in Palestine, Texas, for 14 years and the lead detective on the case where Robert Roberson was accused of shaking his two-year-old daughter, Nikki, to death. I testified for the prosecution and helped send Mr. Roberson to death row in 2003. For over 20 years, I have thought that something went very wrong in Mr. Roberson’s case and feared that justice was not served. I have come to believe that Nikki died of accidental and natural causes and that there was no crime. I am convinced that Mr. Roberson is innocent.”
“I’m ashamed that I was so focused on finding an offender and convicting someone that I did not see Robert. I did not hear his voice,” Wharton has lamented.
Roberson’s innocence was also supported in amicus curiae briefs filed in his behalf in 2023 before the U.S. Supreme Court by the Innocent Project of Texas, The Center for Integrity in Forensic Sciences, Concerned Physicians and Scientists, Retired Federal Judges, and Witness to Innocence.
This support notwithstanding, the nation’s high court denied certiorari relief to Roberson on October 2, 2023, the first day of its last term.
Time is running out for the innocent claims of Robert Roberson.
The CCA on September 11, 2024, denied Roberson’s second habeas application and motion to stay his October 17 execution date. The court did not even consider the merits of Roberson’s claims.
Roberson’s supporters continue to fight.
On September 17, as reported by television station KVUE, “… dozens of Texas House representatives [a bipartisan majority of the Texas House], scientists, doctors, advocacy organizations and attorneys sent letters, urging the Board of Pardons and Paroles and Gov. Greg Abbott to grant Robert Roberson clemency before he’s set to be executed on October 17.”
The Roberson case poses a political and moral challenge to Gov. Abbott.
The governor in 2018 commuted the death sentence of Thomas Whitaker just minutes before his execution was set to be carried out for the murders of his mother and brother. Abbott’s decision to commute Whitaker’s death sentence came at the request of the condemned inmate’s father, Bart Whitaker. The effort to reduce Thomas’ Whitaker’s death sentence to life was supported by two Texas lawmakers, a Republican and a Democrat.
Thomas Whitaker was obviously guilty of planning and orchestrating the murder of his entire family, succeeding in the murder of his mother and brother, while Robert Roberson is as obviously innocent of the SBS death of his daughter.
So the question for Gov. Abbott is this: does the governor kill an obviously innocent man for the wrongful conviction of a family member on the heels of sparing a guilty man who planned and orchestrated the murder of two family murders?
Roberson is set to be executed today, October 17, 2024. However, in a last-minute attempt to stall the state-sanctioned murder, The Texas House Committee on Criminal Justice has subpoenaed Roberson to testify before the committee. The unusual bipartisan move has now placed the execution in question and has stirred a debate over the separation of powers between the legislature and the governor. The committee is investigating the failure of the criminal justice system to implement the junk science law effectively and believes Roberson’s testimony would be necessary to the committee’s understanding of the problem.
As was reported in the Texas Tribune, “[t]his law, in this way, isn’t about one person — it is about the system as a whole,” state Rep. Joe Moody, D-El Paso and the committee’s chair, said. “The issue in front of us is whether our law, which was a first of its kind in the nation and heralded as a landmark legislation, hasn’t been thrown in the garbage in the courts. That, to me, should be unacceptable.”
All eyes will be watching Governor Abbott today as the 6:00 pm execution time approaches.
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