Texas Lawmakers’ Unusual Attempt to Halt the Execution of a Possibly Innocent Man 

A Texas death penalty case has pitted the state legislative and executive branches against each other.

Robert Roberson was sentenced to death in 2003 for the murder of his daughter. Roberson’s prosecution was based on “shaken baby” syndrome, a controversial theory. First introduced in the 1970s, shaken baby syndrome allegedly occurs when children are shaken to death, which is indicated through a common set of symptoms — though many have argued that it is unreliable and “junk science.” In some cases in which a defendant’s conviction on this basis has been set aside, it has not always been clear that a homicide crime even occurred. Roberson’s execution was scheduled for October 17 and would have been the country’s first execution for a conviction based on shaken baby syndrome.

Roberson had exhausted virtually every option to stop his execution as the date approached. He was denied clemency by the Texas Board of Pardons and Paroles, a board established by the state constitution that reviews requests for clemency. Without a positive recommendation from the board, the governor cannot issue a pardon — and is limited to issuing a temporary, 30-day reprieve. The U.S. Supreme Court declined to intervene as well, though Justice Sonia Sotomayor urged Texas Gov. Greg Abbott to issue a reprieve. (Abbott declined.) Roberson sought a variety of relief from state courts in Texas, but was rejected on all fronts. The Texas Court of Criminal Appeals, the state’s court of last resort for criminal cases, declined to reconsider its past decisions, paving the way for Roberson’s execution.

But the day before the scheduled execution date, something unprecedented happened: The Criminal Jurisprudence Committee in the Texas House of Representatives issued Roberson a subpoena to testify before it the following day. The committee had previously attempted to intervene in Roberson’s state court appeals, arguing that it needed time to weigh possible changes to the state’s “junk science” law. The law, which was passed in 2013, allows criminal defendants to challenge their convictions when the science on which they were convicted has since been discredited — though a recent report by the Texas Defender Service asserted that the law “is not operating as the Texas Legislature intended,” in part because it has not enabled a single person on death row to successfully challenge their sentence. However, with those efforts rejected and Roberson’s execution scheduled to occur, the committee subpoenaed him, challenging the executive branch to dishonor the subpoena by proceeding with the execution.

The subpoena triggered an avalanche of legal filings. The committee successfully sought a stay of Roberson’s execution from a trial court judge, but this was quickly reversed by the Court of Criminal Appeals. The committee then went to the Texas Supreme Court, which at the last minute temporarily blocked the execution while it considered whether the legislature’s subpoena power could stall an execution.

But the delay was only temporary. On November 15, the court handed down a unanimous opinion holding that the legislature could not use its subpoena power to interfere with the executive branch’s lawful administration of the death penalty. The court pointed out that while the committee certainly had the power to subpoena Roberson to undertake an inquiry into shaken baby syndrome, it could not wait until the last minute to do so to delay an execution. The court allowed Roberson’s execution to be rescheduled, though no date has been set.

The underlying facts of this case are horrific. Roberson’s execution is predicated on fundamentally flawed grounds. The science behind “shaken baby” syndrome has been discredited, and many of the people initially convicted on that basis have been exonerated.

Yet on the merits, it is difficult to argue that the court’s decision was incorrect here. As the court correctly noted: “While this case presents a novel question, resolving it does not require us to break any new ground in our separation-of-powers jurisprudence.” At the point that an execution has been scheduled and is on the eve of taking place, the opportunity for intervention from the state legislature is at its twilight. Though the Texas legislature, like all legislative bodies, has sprawling power to conduct investigations and fact-finding expeditions, that power surely cannot be used to impede the lawful operations of the other branches of government. If the legislature were allowed to postpone an execution by subpoena, what would stop it from doing so repeatedly and indefinitely?

Meanwhile, the committee has thus far been stymied in its efforts to have Roberson testify, though the supreme court made a point of noting that the committee had time to allow Roberson’s testimony, with the prospect of “judicial relief in the ordinary way to compel a witness’s testimony.” State Attorney General Ken Paxton refused to allow Roberson to testify in person at the October hearing, citing vague public safety concerns and suggesting virtual testimony instead. In Roberson’s absence, a marathon hearing took place, featuring supportive testimony from television’s Dr. Phil McGraw and novelist John Grisham. Lawmakers then issued a second subpoena requiring Roberson to appear in person at a hearing in late December about the state’s junk science law, but Paxton filed a motion blocking that testimony as well.

Cases like this one present gnarly jurisdictional questions in Texas, which has two separate supreme courts. Though the Texas Supreme Court has no jurisdiction over criminal appeals, its decision in this case was on the administration of capital punishment. The basis of the jurisdiction it claimed was to “resolve as a matter of law which branch’s authority must prevail” when the death warrant and subpoena “were mutually exclusive commands” and the state criminal justice department “could not obey both.” But given that neither the Texas Supreme Court nor the Texas Court of Criminal Appeals takes orders from the other, an extreme version of a case like this could easily pit one court’s mandate over another. If, for example, the Texas Supreme Court repeatedly enjoined a scheduled execution, and the Texas Court of Criminal Appeals repeatedly rejected challenges to the same execution, there would be no clear way to resolve the conflict.

Ultimately, as the Texas Supreme Court pointed out, “The legislature itself has created the legal framework for capital punishment” — and the legislature’s outrage at Roberson’s execution belies its own complicity in setting the scene for all of this to take place. Though the opposition to Roberson’s execution was genuinely bipartisan, it is difficult to know what the legislature expected in codifying capital punishment and dragging its feet on modifying an inadequate bill to eliminate “junk science.”

Given the frequency with which those on death row are exonerated — hundreds of people sentenced to death have been proven innocent, both before and after their executions — it cannot be surprising that there would be serious doubts about the innocence of a single death row inmate in Texas. The best use of the legislature’s agency and constitutional powers, therefore, is to avoid execution sentences like Roberson’s from happening again, not to use roundabout processes to stymy one specific execution.

Quinn Yeargain is an associate professor of law and the 1855 Professor of the Law of Democracy at the Michigan State University College of Law.

Suggested Citation: Quinn Yeargain, Texas Lawmakers’ Unusual Attempt to Halt the Execution of a Possibly Innocent Man, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jan. 3, 2025), https://statecourtreport.org/our-work/analysis-opinion/texas-lawmakers-unusual-attempt-halt-execution-possibly-innocent-man