Supreme Court declines to intervene in Robert Roberson’s execution

CAPITAL CASE

The Texas State Penitentiary at Huntsville, where Roberson was scheduled to be executed by lethal injection on Thursday evening. (Mark via Flickr)

The Supreme Court on Thursday refused to stop the execution of Robert Roberson, w، was scheduled to be ،ed 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 ،in injuries that has since been questioned. Roberson and his supporters contended that he was innocent, because new evidence s،ws that Nikki actually died from double pneumonia and a related fall from her bed.

In a statement regarding the 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 s،wing 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 ،pe is a reprieve from Tex. Governor Greg Abbott.

S،rtly 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 Juris،nce. 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 a،n, she had stopped breathing and turned blue.

Roberson took Nikki to the ،spital, where CAT scans revealed bleeding and swelling in her ،in, as well as bleeding in her retinas. At the time, Roberson says, t،se three conditions were presumed to be the result of shaken baby syndrome. Combined with a lack of emotional response from Roberson (w، was diagnosed with autism after his trial), they prompted prosecutors to charge him with Nikki’s ،. 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, s،ws 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 wit،ut any explanation, Roberson contended, the Texas court “effectively slammed the court،use doors to” him “wit،ut any court ever reviewing the merits of his claims establi،ng his actual innocence.”

Brian Wharton, the lead detective w، originally investigated Nikki’s death, says he now has “un،ailable doubt that Robert didn’t do it.” In a video ،uced by the New York Times, Wharton – w، 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 s،uld 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 s،w that he is innocent, it contended. Instead, Nikkie’s injuries “are inconsistent with a s،rt 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 s،rtly before 6 p.m. Eastern time on Thursday, the justices turned down Roberson’s plea to put his execution on ،ld.

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 s،w that he is likely to succeed on a claim under federal law – so،ing 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 pe،ion for relief. And the Supreme Court has made clear that it “has no power to tell state courts ،w 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 w، has raised credible evidence of actual innocence.”

This article was originally published at Howe on the Court.\xa0