Robert Roberson, currently sitting on death row for a death that may not even be a crime, has tested the entire Texas government’s system of checks and balances.
In 2003, Roberson was convicted of murdering his daughter by shaking her, and if executed, would be the first person to die under a shaken baby law. However, there is considerable scientific question whether Shaken Baby Syndrome even exists. Roberson has repeatedly appealed his conviction under a Texas statute that says convictions can be overturned if they are based on “junk science.”
These appeals came to naught, and Roberson was scheduled to die on October 17. Then the Texas legislature stepped in. Not with a new law debunking Shaken Baby Syndrome and freeing Roberson, but with a subpoena ordering him to testify on the matter. It was clear to all involved that the late subpoena was an attempt to buy Roberson more time.
However, this act has highlighted the cracks in the Texas government’s oversight practices. While everyone agrees that the legislature has the broad right to order testimony, doing so as a way to thwart legal execution is a glaring constitutional breach of the executive branch’s power. The Texas Supreme Court has said as much in a unanimous ruling from November 15 on the matter.
Theoretically, Governor Greg Abbott could pardon Roberson, but his hands are more tied than some other state governors. Abbott can only issue a pardon on the recommendation of the Texas Board of Pardons and Paroles, a board he appointed but does not control. They have declined to do so, and Abbott cannot override them without breaching the constitution. Any legal challenge would paint him entirely in the wrong.
The matter is exacerbated by the fact that Texas has two supreme courts. The Texas Supreme Court does not handle criminal appeals; that’s the job of the Texas Court of Criminal Appeals. Neither one of these bodies has to listen to the other, and if they disagree on a matter, there is technically no one to enforce one rule against the other.
Currently, Roberson’s fate is still tied up with the legislature’s attempt to get him to testify, which they renewed the request for two weeks ago. Attorney General Ken Paxton has fought against having Roberson do so in person citing public safety concerns, but the matter is not settled. The United States Supreme Court has also refused to hear the case, insisting that it is the state’s job to figure out what to do.
There is no clear path on how to proceed. Even if Roberson does get his chance to testify, it can only delay his execution. The legislature will be in full session in a little over a week, meaning that a new law could save Roberson’s life if the governor is willing to sign it. That said, the Republican-controlled legislature is still in turmoil itself as it seeks a new Speaker of the House, making actual work in the first week very uncertain.
In the meantime, no one has an answer for what to do when the Texas government all disagrees on an execution.
