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Brian Wharton’s voice cracked as he reached two decades into his memory to describe his role in putting a man he now believed to be innocent on death row.
“To those who hold the power to do something here, now is the moment,” Wharton pleaded. “Hear his voice. … Listen, and you will hear innocence.”
Wharton, the lead detective in death row inmate Robert Roberson’s trial, was testifying before the Texas House Committee on Criminal Jurisprudence on Wednesday, just over 24 hours before Roberson’s scheduled execution.
“I’m ashamed that I was so focused on finding an offender and convicting someone that I did not see Robert. I did not hear his voice,” Wharton said to a rapt audience. Donna Farmer, whose son was friends with Roberson growing up, sat in the hearing room, her eyes closed and hands folded as if in prayer.
“He is an innocent man,” Wharton said, “and we are very close to killing him for something he did not do.”
The Texas Board of Pardons and Parole denied Roberson’s clemency application on Wednesday just as lawmakers were warning that Texas was not only about to execute a man without ensuring due process, but that the man was most likely innocent. The decision capped off a series of startling court rejections on the march to his execution — leaving Roberson with little recourse before his scheduled death, even as a forceful, bipartisan campaign to spare him thundered on.
Texas is set to execute Roberson around 6 p.m. on Thursday. In a last-minute bid to head off Roberson’s execution, the Texas House Committee on Criminal Jurisprudence voted Wednesday evening to subpoena him. The extraordinary move had little-to-no precedent, according to lawyers and experts, but could potentially delay Roberson’s execution while the subpoena is litigated in court.
The lawmakers had little say over whether Roberson would live when they convened on Wednesday morning, but they were nevertheless flexing the power of their bully pulpit to prove his case and excoriate the failures of a law that they believed should have saved him long ago.
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“I know the Board of Pardons and Paroles and the governor’s office is watching and tuning in right now,” state Rep. Jeff Leach, R-Plano, said before the parole board announced its decision. “I hope they’re paying attention to this right now, because the law that the Legislature passed, and our governor signed into law, is being ignored by our courts. And all we’re seeking to do here is to push the pause button to make sure that it’s enforced.”
With the clock ticking and the execution the state was barreling toward weighing heavily in the room, the committee’s four Democrats and five Republicans, in voices brimming with frustration, interrogated deficiencies in the law that was created for convictions just like Roberson’s.
For these lawmakers, Roberson was the face of Texas’ failure to implement the trailblazing 2013 junk science law, Article 11.073, as intended — a pioneering statute that was imitated across the nation, and for which the Legislature was widely lauded just over a decade ago.
“This law, in this way, isn’t about one person — it is about the system as a whole,” state Rep. Joe Moody, D-El Paso and the committee’s chair, said. “The issue in front of us is whether our law, which was a first of its kind in the nation and heralded as a landmark legislation, hasn’t been thrown in the garbage in the courts. That, to me, should be unacceptable.”
The 2013 junk science law was passed to allow the courts to overturn a conviction when the scientific evidence at the crux of a case has since changed or been discredited. Roberson has sought unsuccessfully to use the law to prove his innocence, arguing that his 2003 capital conviction in the death of his 2-year-old daughter, Nikki Curtis, was based on a faulty shaken baby syndrome diagnosis.
Prosecutors have maintained that evidence of abuse remains convincing and that Roberson’s daughter suffered multiple traumas — a conclusion his attorneys dispute.
“We reviewed this case in detail and fully expected that this law would provide relief,” Moody added. “That has not happened.”
The underground hearing room in the Texas Capitol extension building was an unusual stage for a discussion about an already litigated death penalty case.
With the Legislature out of session and no legislation before the committee, Moody opened the hearing reminding witnesses — which included the prosecuting district attorney and Roberson’s defense attorney — to “testify neutral” regarding a life-or-death situation about which they were decidedly not.
But if the hearing’s parameters underscored the limits of the Legislature’s authority over Roberson’s fate, lawmakers were determined to air on the public record what a jury had never heard.
A stream of medical professionals and forensic science and legal experts testified on Wednesday, as lawmakers pressed them repeatedly to poke holes in Roberson’s conviction, illustrate how the scientific understanding of shaken baby diagnoses had evolved and explain how the junk science law had been misapplied.
“Is it your belief that our laws, and in particular this law, is being so egregiously violated — that that lack of adherence to a plain language, statutory reading and interpretation is so egregious — that it may result in the death of the innocent person?” state Rep. Brian Harrison, R-Midlothian, asked Gretchen Sween, Roberson’s attorney.
“I fear that’s what’s happening,” Sween said. “I do not believe any court has meaningfully acknowledged the evidence.”
It is rare for such a bipartisan coalition to agree on anything — and indeed, members of the committee vehemently disagree about the death penalty — but they were united in their conviction that something here had gone wrong and could send an innocent man to his death.
“If the Legislature can’t exercise oversight over a potential breach of a duly enacted statute that may result in the government taking an innocent person’s life, then there is no subject matter by which the Legislature can exercise oversight,” Harrison said. “This may be the most quintessential and core function of the Legislature.”
The clock struck 6 p.m. just as Sween finished the first portion of her testimony — marking 24 hours until Roberson’s scheduled execution. Moody, acknowledging the moment, asked for a pause as Sween and a few members of the audience began to cry.
Sween’s testimony unspooled a long battle for justice — first, for Roberson to obtain a defense attorney who would pursue his innocence claim, followed by a fight to get heard in court. Those appeals, she said, were then marked by obstacles to every attempt to obtain legible medical records, and an apparent refusal by both the state and the courts to engage with new evidence.
Meanwhile, pressed on Roberson’s arguments that Nikki’s death was natural and accidental — which a range of experts affirmed all day — Allyson Mitchell, the Anderson County criminal district attorney, said repeatedly that she would have to check the record. She testified that a judge would have heard those claims during the appeals process, and that she stood by the state’s case.
In one sharp exchange, Harrison asked if she was certain a murder took place.
“Yes,” Mitchell said, “based on the totality of the evidence at the original trial, post writs that have been filed and the hearings that have been held.”
“Just to be clear,” Harrison replied, “you’re referencing evidence that no less than 30 times in this hearing you have said that you have no knowledge of at the moment.”
Harrison then asked whether the criminal justice system can make mistakes. She agreed. He asked again if she had “100% certainty” that Roberson murdered his daughter.
“I trust in the legal process, that has the safety nets and reviews to do the checks and analysis to make sure everything is right, and I believe that that did occur here,” she said.
“So to be clear,” Harrison said, before wrapping up his questioning, “you trust in the process that one moment ago you admit sometimes does fail.”