In shock move, Texas Supreme Court pushes pause, keeps Robert Roberson alive

The unexpected order came after a bipartisan group Texas lawmakers issued a subpoena Wednesday to have Roberson testify before a committee next week.

The Texas Supreme Court kept a man alive on Thursday night who was scheduled to be executed so that he would still be alive to testify before lawmakers on Monday.

Robert Roberson was scheduled to be executed on Thursday evening for a conviction of killing his 2-year-old daughter, Nikki Curtis, in 2002 that rested on a since-discredited “shaken baby syndrome” finding. Roberson has maintained his innocence the entire time, and the conviction has been questioned by many and faced substantial, bipartisan opposition in recent years. In the years since the passage of a Texas law addressing “junk science” convictions in 2013, moreover, even the lead detective on Roberson’s case now says Roberson is likely innocent and that his sentence shouldn’t stand.

Despite all of that, the unexpected developments in Roberson’s case over the past 48 hours that kept him alive for now happened even as the more traditional routes — the routes that the Texas and federal governmental systems allegedly assigned to protect against such acts as killing an innocent person — failed Roberson repeatedly and spectacularly.

The Texas courts — where the highest court for criminal cases is the Texas Court of Criminal Appeals (TCCA) — repeatedly rejected Roberson’s claims for a new trial under the junk science law; the Texas parole board rejected a clemency recommendation on Wednesday, which is required before Gov. Greg Abbott even could have considered granting clemency; and the U.S. Supreme Court on Thursday denied Roberson’s request for a stay of execution, with only Justice Sonia Sotomayor even bothering to write anything.

Even her writing, though forceful, was a statement that the U.S. Supreme Court couldn’t help. It was, nonetheless, a damning statement — detailing the failings of the Texas courts and the inadequacy of our legal system to protect against state or federal executions of innocent people.

But, for now, Roberson remains alive following a 48 hours unlike anything I’ve seen in a decade of covering the final days preceding virtually every execution to have been scheduled in the United States in that time.

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Sotomayor’s statement

“Current postconviction remedies often fail to correct convictions ‘secured by what we now know was faulty science,’” Sotomayor wrote on Thursday, quoting her statement in a prior case out of Alabama. “This case is emblematic of that problem.”

Specifically as to Roberson, she continued:

Roberson now seeks a stay of execution with this Court. Few cases more urgently call for such a remedy than one where the accused has made a serious showing of actual innocence, as Roberson has here. Yet this Court can grant a stay only if Roberson can show a “significant possibility of success on the merits” of a federal claim.

That was not present here, she wrote, because “Roberson’s only federal challenge is to the TCCA’s practice of issuing ‘boilerplate opinions dismissing subsequent habeas petitions for purported failure to satisfy’ Texas’s procedural requirements in habeas cases.” That’s just not a federal claim, she explained, because the U.S. Supreme Court has ruled that it has “no power to tell state courts how they must write their opinions.”

Despite that, she did go on to detail what she viewed as the failings of the Texas Court of Criminal Appeals in Roberson’s case: “Nevertheless, it is notable that the TCCA’s decisions in this case do not address the whole of Roberson’s evidence of actual innocence.”

Her conclusion was stark:

Under these circumstances, a stay permitting examination of Roberson’s credible claims of actual innocence is imperative; yet this Court is unable to grant it. That means only one avenue for relief remains open: an executive reprieve. …

An executive reprieve of thirty days would provide the Texas Board of Pardons and Paroles with an opportunity to reconsider the evidence of Roberson’s actual innocence. That could prevent a miscarriage of justice from occurring: executing a man who has raised credible evidence of actual innocence.

And yet, if everyone acted “normally” — if no one did more than was expected of them — then Roberson’s execution would have gone forward on Thursday night unless Abbott had issued Roberson a 30-day reprieve of execution.

For their part, officials at the Texas Department of Criminal Justice were still ready to proceed with the execution late into the night.

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The lawmakers’ move

Roberson is still alive this Friday because of what has been called an “unprecedented” move by Texas lawmakers and a willingness of the Texas Supreme Court to listen.

On Wednesday, the House Committee on Criminal Jurisprudence issued a subpoena to have Roberson testify before the committee on Monday, October 21, and provide “all relevant testimony and information concerning the committee's inquiry into relevant criminal procedure matters.“

Specifically, according to the notice of the Monday hearing, the discussion will be about “[c]riminal procedure related to capital punishment and new science writs under Article 11.073, Code of Criminal Procedure“ — the 2013 “junk science” law.

The vote to subpoena Roberson was unanimous among all seven members of the committee present and voting at that point — including five Republicans. (The two absent Democrats had supported previous efforts to get the courts to stop Roberson’s execution.)

After the clemency request had been denied on Wednesday, two of the lawmakers — Reps. Jeff Leach, a Republican who chairs the Judiciary and Civil Jurisprudence Committee, and Joseph Moody, a Democrat who chairs the Criminal Jurisprudence Committee — went to court on Thursday, asking for a temporary restraining order blocking the state from executing Roberson because such an execution would prevent him from being able to testify to the committee.

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Three Texas rulings

Travis County District Judge Jessica Mangrum granted the lawmakers’ TRO, meaning the execution was on hold — as the U.S. Supreme Court was rejecting Roberson’s request for a stay of execution.

The state, however, quickly sought review of Mangrum’s TRO from the Texas Court of Criminal Appeals. Hours later, on a 5-4 vote, the TCCA purported to vacate the TRO — a move that would have allowed the execution to proceed.

“The effect of Respondent’s order was to stay Roberson’s execution, circumvent our decision, and disobey our mandate,“ the per curiam, unsigned, majority opinion stated, concluding that they were vacating the TRO.

Judge David Newell, for the dissenting judges, wrote that this was a case where “our Legislature seeks to vindicate its own authority to subpoena witnesses for testimony before it” — not a situation where the person facing a death sentence is going to a different court — and so the court should not have acted so hastily.

That wasn’t the end of the matter. After Texas Attorney General Ken Paxton had gone to the TCCA, the lawmakers went to the Texas Supreme Court, arguing that the TCCA lacked jurisdiction to hear the case.

Then, a little before 10:00 p.m. CT, the Texas Supreme Court issued an order.

The court — with no noted dissents — stayed the execution “until further order of this court.”

Justice Evan Young, the court’s newest member, agreed with the order staying Roberson’s execution, but wrote — on behalf of himself, Chief Justice Nathan Hecht, and Justice Rebeca Huddle — to highlight what he saw as the narrowness of the issue before the court. In part, Young wrote:

He went on to write that “while I express no views as to the outcome of the proceedings that will answer these significant questions, the district court did not abuse its discretion in granting a TRO to prevent the case from becoming moot.”

Finally, Young urged “the district court [to] proceed to the underlying merits with maximum expedition, subject to this Court’s review” — if the legislative and executive branches “cannot reach an accommodation on their own.”

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“Another day“

While it all is very tenuous, as Young’s statement makes clear, Roberson’s execution cannot proceed for now. And sometimes in death penalty litigation, that’s the win you have to take.

Gretchen Sween, a lawyer for Roberson, said in a statement that she and others were “elated” by the news, noting, “He lives to fight another day and hopes that his experience can help improve the integrity of our criminal legal system.”

Lawmakers Moody and Leach, too, were gratified. “[W]hile some courthouses may have failed him, the Texas House has not. We're deeply grateful to the Texas Supreme Court for respecting the role of the Texas legislature in such consequential matters,” the pair said in a statement. “We look forward to welcoming Robert to the Texas Capitol, and along with 31 million Texans, finally giving him-and the truth—a chance to be heard.”

For his part, according to a statement from the Texas Department of Criminal Justice, “After being told about the stay, [Roberson] praised God and thanked his supporters.“