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In a state where the death penalty is as ingrained as cowboy boots and conservative politics, news of Robert Roberson’s death sentence broke through in Texas after the rarest of phenoms: a noisy, bipartisan effort that bypassed the governor’s office to save a man from lethal injection.
For years, the appeals of Roberson’s capital murder conviction for the 2002 death of his chronically ill, 2-year-old daughter had lumbered through the courts, tracing a byzantine process that often fails to register with residents of the nation’s execution capital, where 591 inmates have been put to death in the state since capital punishment was reinstated in 1976.
But while lawmakers were making historic interventions, many Texans took note of the silence by the person traditionally empowered to step in at the last minute: Gov. Greg Abbott.
“Abbott’s silence is deafening,” said Brandon Rottinghaus, a professor of political science at the University of Houston.
After all, Abbott had at his disposal the power to grant a 30-day reprieve for Roberson, whose lawyers claim was wrongfully convicted based on junk science. A U.S. Supreme Court Justice urged him to take that step. If Abbott had, there would have been no frantic and unprecedented rush by lawmakers to issue a subpoena of Roberson and then go to court to block the execution — first to a Travis County judge, then to Texas’ two high courts before Roberson’s execution was finally called off.
There’s been no public statement from Abbott about Roberson’s case before or since. If the execution had gone forward, Roberson would have been the first person in the nation to be put to death in a shaken baby syndrome case, a diagnosis that has come into question in recent years. Multiple requests for comment to the governor’s office by The Texas Tribune went unanswered.
The silence “certainly signals his willingness to go his own way against the Legislature and also reflects that, like Gov. Perry before him, the realization that being tough on crime is an essential element of muscularity for national Republicans,” Rottinghaus said.
Silence on executions, not unusual
Unlike the Hollywood image of a governor making a frantic phone call to stop an execution, the reality, especially in Texas, is far less dramatic. Texas governors can only act on a recommendation of clemency from their own appointees to the Texas Board of Pardons and Paroles. Or they can opt for the 30-day reprieve.
According to the Associated Press, the Texas parole board has recommended clemency in a death row case only six times since the state resumed executions in 1982. In three of those cases, death row inmates had their sentences commuted to life in prison. In two of the cases, Perry rejected the parole board's recommendation to commute a death sentence to life in prison, and the two prisoners were executed.
But despite that limited power, Abbott may have inadvertently raised the Texas public’s expectations of intervention last year. That’s when he was quick to jump in publicly after a jury convicted an Austin man of fatally shooting a Black Lives Matter protester. Abbott posted on social media that he would quickly seek a pardon. The parole board did recommend a pardon a year later, and Abbott made good on his promise.
But veteran court watchers say Abbott’s silence on even a high profile death penalty case is not out of the ordinary.
“It’s typical,” said Elsa Alcala, who served for seven years as a judge on the Texas Court of Criminal Appeals, the state’s highest criminal court, before stepping down in 2018. “Usually, the governor doesn’t get involved.”
So far, more than 60 executions have been carried out while Abbott has been governor, a fraction of the more than 200 that occurred when former Gov. Rick Perry was in office. That’s the result of increased judicial scrutiny on death row cases and more prosecutors seeking life in prison instead of the death penalty.
Abbott has only commuted one death sentence. In 2018, he spared the life of Thomas “Bart” Whitaker, who masterminded a murder-for-hire scheme that resulted in the death of his mother and younger brother and injured his construction company executive father, who ultimately forgave his son. Whitaker’s case was reduced to a life sentence.
“Even going back to Ann Richards, I don’t think there’s a history of Texas governors in capital cases giving reprieves,” said Kenneth Williams, the Fred Gray Endowed Chair for Civil Rights and Constitutional Law at Texas Tech University. “They rarely do in capital cases.”
Longtime Texas political observer Cal Jillson agreed.
“Governors at least going back to George W. Bush, in the case of a mentally challenged inmate named Oliver Cruz, and Rick Perry, in the case of Cameron Todd Willingham, have been reluctant to intervene in death penalty cases for fear of appearing ‘soft on crime,’” said Jillson, a political science professor at Southern Methodist University.
The added fact that Abbott, before he was first elected governor in 2014, was the state’s longest-serving attorney general, whose office is charged with ensuring a trial court’s death sentence is carried out, could help explain why Texans don’t hear much from him regarding an individual’s case.
“He defended these cases, so that may weigh on him as governor,” said Williams, the Texas Tech University law professor, adding that Abbott’s lack of intervention in this or any other case is not out of step with governors in other states.
“Most governors are reluctant to grant any kind of clemency after there’s been conviction,” he said. “I don’t think they want the blowback in that.”.
How the case unfolded
Roberson, 57, of Palestine, was convicted of his daughter’s death in 2003 after an autopsy determined his daughter, Nikki, who had been ill with a fever, had died of shaking and blows. Investigators believed that Roberson’s emotionless demeanor was further evidence of his guilt. Roberson has since been diagnosed as having autism, which could explain Roberson’s behavior at the time. A police detective whose investigation sent the East Texas man to death row, now supports Roberson’s claims of innocence.
On Wednesday, as both the Texas parole board and the Texas Court of Criminal Appeals rejected Roberson’s last-minute appeals, the House committee members issued their subpoena, arguing that only Roberson could provide unique testimony on Texas’ pioneering 2013 junk science law — which Roberson had tried, and failed, to use to prove his innocence. Last month, 80 Texas lawmakers, including supporters of the death penalty, wrote Texas parole board members in support of Roberson’s request for clemency.
The law is designed to allow defendants an avenue to prove their innocence if they were convicted based on science that is later shown to be faulty. In fact, no Texas death row inmate has successfully used the law to obtain a new trial, leading the Texas Defender Service to conclude that the statute “is not operating as the Texas Legislature intended.”
The steps legislators took to halt the execution were unprecedented, and drew some complaints of overstepping their authority.
“I will absolutely defend what we did,” state Rep. Brian Harrison, R-Midlothian, a member of the House jurisprudence committee who began looking into Roberson’s cases a few months ago on the recommendation of a colleague. “We have to protect the integrity of the criminal justice system.”
Harrison confirmed that lawmakers contacted Abbott after their subpoena was issued but did not want to discuss specifics of those conversations, describing them only as “professional and productive.”
Many of those who tracked the Roberson saga this week were struck more by the actions of the Legislature than the inaction of Abbott.
“What is unusual in the case of Robert Roberson is not so much Abbott’s silence, as the bipartisan effort to slow this execution at least long enough to take a closer look,” Jillson said.
But Amanda Marzullo, the former executive director of the Texas Defender Service, said it was necessary for the Legislature to step in, given that the use of clemency by American governors has waned.
“We have seen a massive atrophy in the clemency power,” she said. “It was something governors did all the time.”
She pointed to how more than 200 years ago, a governor’s pardon power was used more often because death was often the punishment for far lesser crimes.
"This is how this system was designed,” Marzullo said. “So no one branch is doing all of the work in a particular sector.”