CAPITAL CASE

Supreme Court declines to intervene in Robert Roberson’s execution

This article was updated on Oct. 18 at 9:07 a.m.

The Supreme Court on Thursday evening refused to stop the execution of Robert Roberson, who was scheduled to be killed by lethal injection in Texas Thursday night for the 2002 death of his two-year-old daughter, Nikki. Prosecutors had argued that Nikki suffered from shaken baby syndrome, a diagnosis for certain brain injuries that has since been questioned. Roberson and his supporters contended that he was innocent, because new evidence shows that Nikki actually died from double pneumonia and a related fall from her bed.

The Texas Supreme Court stepped in on Thursday night and issued an order that blocked the state from executing Roberson. Texas lawmakers had asked that court to intervene after the Texas Court of Criminal Appeals overruled the temporary order issued by Travis County Judge Jessica Mangrum. 

In a statement regarding the Supreme Court’s decision not to intervene, Justice Sonia Sotomayor emphasized that “[f]ew cases more urgently call for” a stay of execution “than one where the accused has made a serious showing of actual innocence, as Roberson as here.” But there was no claim under federal law for the Supreme Court to act on, she concluded. Instead, she wrote, Roberson’s only remaining hope is a reprieve from Tex. Governor Greg Abbott.

Shortly before the Supreme Court released its order declining to intervene, a judge in Travis County, Tex., temporarily halted Roberson’s execution. State lawmakers from both parties on Wednesday issued a subpoena to require Roberson to appear next week before the Texas House Committee on Judiciary and Jurisprudence. The office of the state’s attorney general has indicated that it intends to appeal that decision.

In the week before her death, Nikki had been seriously ill with what doctors diagnosed as a respiratory infection, including a fever that sometimes reached 104.5 degrees. On the morning that she died, Nikki fell out of bed. Both Roberson and Nikki went back to sleep; when Roberson woke up again, she had stopped breathing and turned blue.

Roberson took Nikki to the hospital, where CAT scans revealed bleeding and swelling in her brain, as well as bleeding in her retinas. At the time, Roberson says, those three conditions were presumed to be the result of shaken baby syndrome. Combined with a lack of emotional response from Roberson (who was diagnosed with autism after his trial), they prompted prosecutors to charge him with Nikki’s murder. He was convicted and sentenced to death by a jury in 2003.

Roberson now contends that the theory of shaken baby syndrome on which prosecutors relied to convict him two decades ago has been “entirely discredited” and that he is innocent. New evidence, he says, shows that Nikki’s death was caused by “a virulent double pneumonia” that had “progressed to the point of sepsis” and was made worse by medications, no longer prescribed to children, that suppressed breathing.

In a brief order, Texas’s highest court for criminal cases declined to review the new evidence presented by Roberson, prompting him to come to the Supreme Court. By dismissing his request without any explanation, Roberson contended, the Texas court “effectively slammed the courthouse doors to” him “without any court ever reviewing the merits of his claims establishing his actual innocence.”

Brian Wharton, the lead detective who originally investigated Nikki’s death, says he now has “unassailable doubt that Robert didn’t do it.” In a video produced by the New York Times, Wharton – who is now a minister – said that police and prosecutors did not consider any other possibilities other than shaken baby syndrome for Nikki’s injuries, but he is “convinced we did the wrong thing.”

A bipartisan group of 86 Texas lawmakers has also expressed support for Roberson. In a letter to Texas Gov. Greg Abbott and the state’s board of pardons and paroles seeking clemency for Roberson, the group suggested that Roberson should at a minimum get a new trial based on a Texas law that allows challenges to convictions that rested on “disproven or incomplete science.”

But the state urged the justices to allow Roberson’s execution to go ahead. Roberson does not show that he is innocent, it contended. Instead, Nikkie’s injuries “are inconsistent with a short fall from a bed or complications from a virus.” At most, the state suggested, “Roberson’s new scientific evidence … engages a ‘battle of the experts’ regarding the diagnosis” of shaken baby syndrome.

The state added that the Supreme Court has never required state courts considering claims for post-conviction relief to “provide a detailed explanation for the application of a state procedural rule.” But even if it had, the state continued, the Supreme Court could not review the state court’s decision in Roberson’s case because it rests solely on state law.

In a brief order issued shortly before 6 p.m. Eastern time on Thursday, the justices turned down Roberson’s plea to put his execution on hold.

Sotomayor’s 10-page statement observed that “[c]urrent postconviction remedies often fail to correct convictions ‘secured by what we now know was faulty science.’ This case is emblematic of that problem.”

But the Supreme Court, she explained, could only stay Roberson’s execution if he can show that he is likely to succeed on a claim under federal law – something Roberson did not raise before the Texas Court of Criminal Appeals. Instead, she observed, his only federal-law claim challenged the state court’s failure to explain its dismissal of his petition for relief. And the Supreme Court has made clear that it “has no power to tell state courts how they must write their opinions,” Sotomayor wrote.

At the same time, Sotomayor acknowledged the evidence that Roberson had presented to support his claim that he is innocent. In light of that evidence, she wrote, a stay to allow reconsideration of that evidence “is imperative; yet this Court is unable to grant it.” She therefore urged Abbott to give Roberson a 30-day reprieve. “That,” Sotomayor concluded, “could prevent a miscarriage of justice from occurring: executing a man who has raised credible evidence of actual innocence.”

This article was originally published at Howe on the Court.