Republican lawmakers in Texas expressed alarm on Monday at the apparent willingness of state officials to execute a potentially innocent man on the basis of junk science, as the political fallout of the 11th-hour reprieve of Robert Roberson continued to roil the state.
Several Republican members of the state’s House committee on criminal jurisprudence lined up to air their discontent with the handling of the case of Roberson, 57, who was convicted of killing his two-year-old daughter Nikki Curtis in 2002 by violently shaking her.
Roberson was accused of “shaken baby syndrome”, a diagnosis that in recent years has been called into question as a reliable forensic tool.
The representative Jeff Leach told a hearing of the committee on Monday that he had come to be convinced that Roberson was “fully innocent”. And yet the prisoner, he said, had come “within 20 minutes and 20 steps of being executed by the state of Texas”.
Monday’s hearing of the committee not only amounted to one of the most dramatic outpourings of unease by Republican state politicians in a death penalty state about the flaws of the capital system, but it also temporarily spared Roberson’s life.
It was the committee’s issuing of a subpoena for the death row inmate to appear before it last Thursday night that persuaded the state’s supreme court temporarily to stay the execution, even as Roberson was sitting waiting to be escorted into the death chamber.
Roberson had been scheduled to answer the subpoena and appear before the committee at Monday’s hearing. But such is the level of political conflict now engulfing the Roberson case that Republicans have become pitted against Republicans.
Texas’s attorney general, Ken Paxton, refused to let the prisoner testify in person. In return, fellow Republican lawmakers refused to have the prisoner give testimony over conference call.
“There are dramatic ways that we could enforce that subpoena,” the chair of the committee, Joe Moody, told the hearing. “But we didn’t issue the subpoena to create a constitutional crisis, and we aren’t interested in escalating a division between branches of government.”
Committee members went on to vent their dissatisfaction at the way the state and state courts had handled the Roberson affair.
“When a man’s life literally hangs in the balance, and we are contemplating the government exercising the ultimate and most awesome power of taking a life, then we cannot get this wrong,” said the Republican representative Brian Harrison.
He added: “I want the state of Texas to lead the nation in just about everything, but executing potentially innocent people is not one of them.”
Had Thursday’s execution have gone ahead, Roberson would have been the first person in the US to have been put to death on the basis of the contested allegation of shaken baby syndrome. The diagnosis came to prominence as a medical and later forensic hypothesis in the early 1970s.
The idea quickly gained traction that violent shaking of an infant could cause severe illness and even death even where there was no sign of external head injury. The syndrome, or abusive head trauma as it is also known, is still considered a viable diagnosis by the American Academy of Pediatrics.
But doubts about its reliability as a forensic tool have grown, especially where no other corroborating evidence is present. Since 1993 there have been 32 exonerations in 17 states following SBS convictions, according to the National Registry of Exonerations.
At Monday’s hearing Phillip McGraw, the clinical psychologist better known as the TV personality Dr Phil, told the committee that having studied the trial records and Nikki’s medical history he had come to the firm conviction that there had been a miscarriage of justice in the case.
He pointed out that scientific advances had shown that an infant could die from other causes other than violent shaking – in Nikki’s case she had been acutely and chronically ill at the time of her death including with severe pneumonia.
McGraw said that Roberson “had not had due process – this man has not had a fair trial. If we start executing people in Texas absent due process and fair trial, we are going down a really dangerous road.”
