By 6 p.m. Wednesday night, the Texas House Committee on Criminal Jurisprudence had been meeting for hours in a hearing room at the state Capitol. Robert Roberson’s attorney, Gretchen Sween, had just laid out the facts of her client’s case when committee chair Joe Moody asked the group to pause and acknowledge that in 24 hours, Roberson would likely face execution.
“It is not lost on me that it is about to hit six o’clock,” Moody said. “We are now entering the final 24 hours of this process, moving to what I think is an unjust conclusion.”
Sween audibly sobbed. Some on the committee appeared to pray silently. Rep. Rhetta Andrews Bowers, D-Houston, stepped down from the dais to bring Sween a box of tissues.
The hearing was held to review the state’s junk science law, a law that, by all accounts, should have provided the basis of an appeal for Roberson. He had been convicted of a long-debunked forensic theory of shaken baby syndrome. But the court had found Roberson’s case did not qualify. The lawmakers wanted to know why. They found that a law is only as good as the humans charged with interpreting it and upholding it.
Brian Wharton, the detective who investigated the death of Roberson’s daughter, Nikki, testified first. He no longer believes Roberson is guilty. He also fought back tears as he described how he felt about Roberson’s impending execution.
“I told my wife that I’m ashamed,” he said. “I’m ashamed that I was so focused on finding an offender … that I did not see Robert. I did not hear his voice.”
Wharton said Roberson forgave him during one of their meetings. “I apologized to him … for my failures and that we haven’t been able to fix what I and others got wrong. And he forgave me.”
Next came a list of scientists with incredible credentials, all of whom reviewed Roberson’s case. Each explained the evidence pointed to a child who was chronically ill, who had been prescribed a drug that is now banned for use in children. They described a child who tragically died, but not at the hands of her father.
Anderson County District Attorney Allyson Mitchell also testified. She frequently answered questions with one reply: “I do not know that; I would have to refer to the transcripts.” The legislators grew increasingly frustrated as she claimed not to remember key parts of the case, including the timing of when she set Roberson’s execution date.
“I would expect for you to have more personal knowledge of the trial records and of these facts—very basic facts, I might add,” said state Rep. Jeff Leach, R-Plano. “I definitely would have expected you to have those in advance of requesting an execution date.”
By the time the hearing came to a close, another avenue to save Roberson from execution had closed. The Texas Board of Pardons and Paroles denied his clemency petition.
The committee then voted to take the extraordinary step of issuing a subpoena for Roberson to testify to the body. That subpoena would require Roberson to appear before the committee today. It marked the first time in U.S. history a legislative body issued a subpoena to a death row inmate, especially one who was less than 24 hours away from execution.
Travis County District Judge Jessica Mangrum granted a temporary restraining order preventing the state from killing Roberson before he could testify. Much legal wrangling has happened in the interim. Attorney General Ken Paxton’s office filed an appeal with the Texas Court of Criminal Appeals, which reversed Mangrum’s decision. The committee appealed to the Texas Supreme Court, which found in the committee’s favor, thus delaying the execution. It was just in the nick of time—the U.S. Supreme Court had earlier ruled that it could not intervene, but seemed to strongly urge Gov. Greg Abbott to consider granting relief. Until Monday morning, Abbott had not issued any response to the fevered legal wrangling. He is requesting the Texas Supreme Court throw out the subpoena, saying the Legislature “has stepped out of line.”
Theoretically, the state could set a new execution date after Roberson appears before the committee. But state law will require a 90 day waiting period after a judge sets a new execution date, which means that Robert Roberson will likely see the new year. Less certain this morning is if he will testify at noon. The state, so far, is only agreeing to allow him to testify virtually. His attorneys say that will not work because his autism diagnosis will hamper his responses. They prefer in-person. The Attorney General’s office is fighting that attempt. (If he does testify, you can watch here.)
On Friday, we spoke to state Rep. Brian Harrison, R-Waxahachie, about the decision to issue the subpoena and why the effort to save Roberson is bipartisan. The conversation has been lightly edited for length and clarity.
The subpoena was unprecedented. How did that come about? It didn’t seem like anyone in the room was surprised by it.
I’m happy and pleasantly surprised that we’re here talking on a Friday morning with Robert Roberson still alive. And I think it’s safe to say that if we had not made that motion, he wouldn’t be. The committee was unanimous and bipartisan, and just because of who was there, there were actually more Republicans that day who voted for the subpoena than there were Democrats.
I say this as objectively one of the most conservative members of the Texas Legislature that this is about pursuing justice, and making sure the government does not wrongly take the life of a potentially innocent person.
But it (the subpoena) happened fast. I really didn’t know we were going to have to be in this situation until the very end. We were possibly staring at a complete breakdown of our criminal justice system as it’s been applied to this individual for over two decades. And as far as the subpoena, I was hoping we weren’t gonna have to do that. I thought the Board of Pardons and Paroles would rule before the hearing. I was surprised it didn’t rule the day before. We didn’t know what situation we were going to be in when we started the hearing.
I thought if the board granted clemency, the hearing would be moot.
I don’t know how any person can take an objective look at this record and the medical evidence that was presented at this hearing and not have—at a minimum—grave doubts about this conviction. The Court of Criminal Appeals had denied some requests, but we were making progress there—a ruling came out one or two days before the hearing was 6-3, and the ruling that came out during the hearing was 5-4, so even that court was moving in Robert’s direction. So I thought for sure that the Board of Pardons—which wasn’t looking at this strictly through the lens that a criminal appeals court was looking at it and had a broader, wider aperture of things they were considering—would recommend clemency. So when they didn’t, I was profoundly disappointed.
So you acted.
We knew we were staring down a situation—the hearing was still going on at 6 p.m., and it was not lost on us that we were at the 24-hour mark of the government taking his life. I don’t remember who had the first idea, or exactly when, but it was not long before the hearing. I was hoping it wasn’t something we were gonna have to do.
This is unprecedented, though. There’s really no case law for it, and some have made arguments about the separation of powers.
When I heard all the testimony, I became convinced of a couple of things. One is the likelihood of an absolute failure of our criminal justice system was in front of me. I felt like the state had not met its burden of proof in this case. In fact, at this moment now, knowing everything I know, I think the only thing that the state ever established during the trial is that there was a very, very sick young girl who stopped breathing at some point and that her father was in the house when it got really bad. That is what has been established. And it was very clear that he had been trying to save her life in the 48 hours leading up to this event, with doctor visits and hospital visits.
And it became clear to me that every single witness—except one—testified when I asked them, “Are our laws being followed?” By that, I’m talking about our junk science law. It became clear to me that not only are the current laws potentially being thwarted and flaunted by the courts, but they may also be disregarded so grotesquely and so egregiously that it may result in the life of a potentially innocent person being taken by the state. That’s not acceptable to me.
It’s very important to me that we maintain our constitutional system of separation of powers. People are fallaciously arguing that the subpoena is a violation of separation of powers. I think—as unprecedented and historic as it was—it was finally necessary to preserve the separation of powers. I want to be really clear: The Legislature and only the Legislature writes laws in the state of Texas. It is the Texas Legislature’s prerogative and duty to ensure that our laws are being fully administered as was the legislated intent.
This effort, when you also consider the 80-some-odd legislators that have signed on to the cause, has been extremely bipartisan. How does that happen?
I think that’s the most unifying thing I could ever imagine. It is no secret that I’m probably one of the most conservative members of the Texas House, but also one of the most vocal members of the House in the pursuit of small government and liberty. And I will say this with all the sincerity in the world, I think this is the most bipartisan effort I’ve been a part of since being in the Texas House, and I could not be more proud of every single member, every single one of my colleagues on both sides of the aisle. We have set aside partisanship and come together in the pursuit of justice.
Author
