Robert Roberson, currently on death row for a death that may not have even been a crime, has tested the entire system of checks and balances in Texas government.
In 2003, Roberson was convicted of shaking her daughter to death and, if executed, would be the first person to die under the Shaken Infant Act. However, there is considerable scientific doubt as to whether shaken baby syndrome exists. Mr. Roberson has repeatedly appealed his conviction under a Texas law that says a conviction can be overturned if it is based on “junk science.”
These appeals were in vain, and Mr. Roberson was scheduled to die on October 17th. Then the Texas Legislature intervened. Instead of a new law debunking shaken baby syndrome and releasing Mr. Roberson, he issued a subpoena ordering him to testify on the issue. It was clear to all involved that the late subpoena was an attempt to buy Roberson time.
But the law highlighted cracks in Texas government’s oversight practices. While everyone agrees that Congress has broad rights to order testimony, doing so as a means to thwart law enforcement is a clear constitutional violation of executive branch power. The Texas Supreme Court said as much in a unanimous decision on the issue Nov. 15.
In theory, Gov. Greg Abbott could pardon Mr. Roberson, but his hands are more tied than some other governors. Mr. Abbott can issue pardons only on the recommendation of the Texas Board of Pardons and Paroles. Although he appointed the commission, he does not manage it. They refuse to do so, and Abbott cannot override them without violating the Constitution. Any legal challenge would put him at a complete disadvantage.
The problem is further exacerbated by the fact that Texas has two supreme courts. The Texas Supreme Court does not hear criminal appeals. That’s the job of the Texas Court of Criminal Appeals. There is no need for either of these bodies to listen to the other, and if they disagree on an issue, there is technically no one to force the rules of one on the other.
For now, Mr. Roberson’s fate remains tied to attempts by Congress to get him to testify, which made the request again two weeks ago. Attorney General Ken Paxton has opposed forcing Roberson to do so directly, citing public safety concerns, but the issue remains. The U.S. Supreme Court also declined to hear the case, saying it was the states’ job to decide what to do.
There is no clear path on how to proceed. Even if Mr. Roberson gets a chance to testify, it will only delay the death penalty. The Legislature is scheduled to begin full session in a little more than a week, meaning the new law could save Roberson’s life if the governor is willing to sign it. But the reality of the first week’s work remains highly uncertain, with the Republican-controlled Congress itself still in turmoil as it attempts to elect a new House speaker.
Meanwhile, no one has an answer for what to do if the Texas government doesn’t all agree to carry out the death penalty.
