Texas Supreme Court Halts Execution Of Likely Innocent Robert Roberson. Yes, That Texas.
This is extraordinary.
Anti-death penalty advocates, believers in Robert Roberson’s innocence, and his family can breathe half a sigh of relief today as the Texas state supreme court issued a temporary stay of execution just as prison officials were getting ready to stick a needle in his arm. And they would have gotten away with it, too, if it weren’t for a ragtag and shockingly bipartisan group of legislators (five Republicans and four Democrats on the Texas House Committee on Criminal Jurisprudence) who came up with the idea to issue Roberson a subpoena for a hearing on Monday in order to “provide all relevant testimony and information concerning the committee’s inquiry” into his possible innocence.
The decision came after a series of big losses for Roberson and his attorneys, as the Texas Board of Pardons and Paroles refused to recommend clemency on Wednesday and the US Supreme Court declined to hear his case — thereby depriving us of another chance to hear Clarence Thomas issue his laments for prosecutors who engage in misconduct to obtain a guilty verdict or explain, again, why innocence isn’t a good enough reason to spare someone’s life.
Texas Republican legislators are not the only surprising advocates Roberson has on his side. Brian Wharton, the lead detective on his case, now believes Roberson is innocent and has been advocating on his behalf for years now, including in this video produced by The New York Times that may make you want to cry your face off.
In 2002, Roberson — who has never wavered from declaring his innocence — took his two-year-old daughter Nikki to the emergency room. She had suffered a short fall from her bed and was also sick with a fever.
Wharton explains that when he was called down to the hospital, the doctors there told him that Roberson’s two-year-old daughter Nikki was actually a victim of Shaken Baby Syndrome. He then observed Roberson’s demeanor and noticed that he did not seem emotional when told that his daughter might die, and saw that as a sign of guilt. He also believed that no one but Roberson could have been responsible.
However, Roberson has autism, which likely impacted the way he reacted at the time. Even without that explanation for his behavior, it’s important to note that people really do have all kinds of different, sometimes bizarre, reactions to particularly horrific situations (including shock, extreme calm, and even nervous laughter), which is why it would really be great if cops did not determine things like guilt or whether or not a sexual assault victim is telling the truth based on their demeanor.
Wharton also says that they did not investigate any other possibilities, taking the doctors’ word about what happened. As it turns out, this was a mistake and there were a number of other things that could have caused Nikki’s death.
A differential diagnosis would have required considering, for instance, the facts that, days after her birth, Nikki had the first of many infections that proved resistant to multiple antibiotics, including chronic ear infections that persisted even after she had had tubes surgically implanted. She also had a history of unexplained “breathing apnea” that caused her to suddenly stop breathing, collapse, and turn blue.
The week before her death, Nikki had been vomiting, coughing, and having diarrhea. When her symptoms didn’t stop after five days, Mr. Roberson and his mother took Nikki to their local emergency room in Palestine, Texas, where a doctor prescribed Phenergan, a potent drug that now carries an FDA black-box warning against being prescribed to children of Nikki’s age and with her condition. Nikki was sent home. Her condition did not improve and, that night, her temperature rose to 103.1 degrees Fahrenheit. The next morning, Mr. Roberson took her to a pediatrician, who sent the toddler home, despite a fever of 104.5 degrees Fahrenheit, and prescribed more Phenergan, in cough syrup with codeine — an opioid now restricted for children under 18 by the FDA due to its risks of causing breathing difficulties and death. Nikki’s toxicology report showed lethal levels of the respiratory-suppressing Phenergan still in her system.
Curiously, Roberson may actually have more of a chance in Texas than he might have in any other death penalty state. Well after he was convicted, the state actually passed a (very good but entirely underutilized) law called the Junk Science Writ if they can show that new scientific evidence or developments undermine their convictions. Hypothetically, this means that if someone were convicted based on “fiber evidence,” which we now know is nonsense, or if DNA testing excludes them, they can use that evidence to appeal their sentences. It hasn’t actually worked very well in practice yet, but this would certainly be a good time for that.
It’s a contentious issue, and while no one denies that shaking a baby is bad and can cause harm, not everyone is certain that it is possible to determine abuse based entirely off of the symptoms associated with the diagnosis.
Personally, I just really don’t think we should execute people or even put people in prison based on the evidence of the injuries alone when something is this disputed, but I’m weird like that. (Again, I highly recommend people watch Susan Goldsmith’s documentary The Syndrome and Pamela Coloff’s fantastic reporting on Russell Maze, another likely innocent man who was convicted of having shaken his infant son to death).
Robert Roberson has spent 23 and a half hours a day in solitary confinement for the last 20 years — something the United Nations has condemned as a form of psychological torture. If there is any chance in the world that he is innocent of this crime (and there obviously is), is that something that we really need to add to by executing him?
I happen to believe the death penalty is wrong in every case and that it should be abolished entirely. But the people who do believe in the death penalty believe in it because they truly believe that it is reserved for the Ted Bundys, for the “worst of the worst” — not because they think that states like Texas are going around killing likely innocent autistic men based on disputed medical diagnoses.
Last month alone, we saw the executions of at least three men, Marcellus Williams, Emmanuel Littlejohn, and Freddie Owens, who were almost definitely innocent of the crimes for which they were convicted. They are dead now and we have no way of going back and correcting any mistakes. The state of Texas now has a chance to stop another potential mistake before it happens, so let’s hope they take it.
PREVIOUSLY ON WONKETTE!
Subpoenaing him is nothing short of genius. Bravo.
I am an autistic person and father of a son who was born at 27 weeks gestational age with numerous life-threatening medical issues. His mother was effectively catatonic for months after his birth, so it fell solely to me to make snap, life-saving decisions about his care.
One of the ways autism manifests in me is a spooky ability to set aside my emotions in an emergency and remain cool and logical. If I didn’t have that, my son would very likely have died.
What no one knows is that when the emergency passes, you sob like your mother just died.
As harrowing as this story is let me say this.
There is a special place in hell waiting for Clarence Thomas. He is a whole special class of evil and the world will be a measurably better place when he finally dies.
And I don't even believe in hell.