A 2023 Gallup poll found that 53% of Americans support the death penalty.
That may strike reasonable minds as a somewhat enthusiastic stamp of approval, but it’s actually a historic low that shows growing disapproval. Even with the universal understanding that murderers and rapists need to be severely punished and fully sequestered from society, this is a 10% decrease from Gallup’s 2014 polling, which found 63% of public support for the death penalty.
In 1994, public support for the death penalty reached the highest concentration in Gallup’s 90-year history, with a staggering 80% of the public supporting it. That same year, Democrats and Republicans in Congress passed the now-infamous “crime bill” (the Violent Crime Control and Law Enforcement Act), which included a provision prescribing the death penalty for all adult defendants who commit terrorism, capital hate crimes, treason and sexual violence against children, among a whole slate of other acts.
The advent of DNA evidence has shown a great number of convictions to be suspect in their own right, and prosecutorial and police misconduct has been more central to the discourse thanks to documentaries like Making a Murderer and crime podcasts like Serial.
“In 1994, the public still had little to no idea of the scope of wrongful convictions in the United States. They still do not.” says Kristin Brown, a Dallas-based criminal defense attorney. Brown specializes in both trial and appellate work and has represented clients accused of capital offenses; she is currently a postgraduate student at the University of Florida College of Pharmacy, where she is pursuing a master’s degree in forensic science.
“Rather, they are generally aware of exonerations due to DNA evidence that conclusively shows the wrong party was convicted," she says. "But most cases do not involve DNA evidence. As a result, habeas [corpus] relief is even harder to obtain.”
The recent execution of Marcellus Williams, whose conviction for a 1998 Missouri murder has come under serious suspicion in recent years due to unreliable witnesses, suspect DNA evidence and possibly unconstitutional jury selection, has helped fuel increased questioning of capital punishment.
Here in Texas, one man’s impending execution has shocked the conscience of both major political factions, yet even appeals from the state legislature have thus far failed to yield a stay or new trial.
Shaken Baby Syndrome and Robert Roberson
Robert Roberson took his 2-year-old daughter, Nikki, to Palestine Regional Medical Center in Palestine, Texas, on Jan. 31, 2002. Doctors and nurses noticed that she had sustained severe head trauma and consequently suspected abuse, but according to Roberson’s attorney Gretchen Sween, there was a litany of other distressing symptoms: her history of respiratory infections and pneumonia culminated in sepsis, which the defense’s medical experts believe to be her cause of death. A body temperature of 104.5 degrees upon admission corroborates this, they say. Nikki was also reportedly prescribed a promethazine/codeine cough syrup by a pediatrician two days before her final ER visit, and despite evidence of the drug’s possibly fatal quantities in Nikki’s bloodstream, its common side effect of respiratory depression did not appear to be fully taken into account by the medical examiner in her trial testimony. Instead, the medical examiner testified that there were signs of “shaken baby syndrome,” a hypothesis that Roberson’s defense counsel has roundly rejected and labeled as “discredited.”
The jury, however, was ultimately persuaded that Roberson had abused his daughter and caused the head injuries, resulting in her death. He was convicted on Feb. 11, 2003.
“Robert’s case represents an extreme miscarriage of justice,” Sween says in an email. “The State’s case against him relies on three elements — all of which have been toppled: the debunked Shaken Baby diagnosis; the rush to judge a father in shock over his daughter’s condition based on manifestations of his disability [we now know Roberson to be autistic]; and an inadequate investigation into other causes of his daughter’s condition — especially in light of contemporary scientific understanding and new evidence from qualified medical specialists establishing her severe pneumonia that had progressed to the point of sepsis.”
Public support for Roberson reached an apex in September when a bipartisan coalition of 86 Texas state legislators sent a letter asking the Texas Board of Pardons and Paroles to recommend clemency for Roberson. (The governor ultimately has authority to grant clemency, but that decision cannot be made without the Board’s recommendation, and a recommendation can be considerably persuasive.) Among the coalition were local Representatives Jessica Gonzalez (D-Grand Prairie), Jeff Leach (R-Plano) and Jared Patterson (R-Frisco), along with others.
Other developments that could help Roberson’s case have since transpired. On Oct. 9, the Texas Court of Criminal Appeals, the highest criminal court in Texas, issued an unlikely 6-3 decision to reverse another dubious “shaken baby syndrome” case and set it for a new trial. That case involved Dallas man Andrew Roark, who medical professionals similarly suspected of abusing his girlfriend’s daughter in 2000. Roark was convicted on a charge of injury to a child, and not murder.
Sween is hopeful that the Roark decision will be an important breakthrough.
“We hope the CCA will see the strong parallels between these two [shaken baby syndrome] cases that we have highlighted in an emergency motion to stay Mr. Roberson’s October 17 execution date, which was filed before the decision in Mr. Roark’s case was announced,” Sween said in a press release via the Innocence Project.
So, What Gives?
Common sense might lead laypersons to conclude that convictions should be reversed the second they are conclusively proven scientifically dubious or constitutionally devastating. And despite Texas’s reputation as a needle-happy state, its legislature has acted with apparent diligence to bring full force to this common sense.In 2013, the legislature passed a bill commonly known as the “junk science law” that allows appellants to introduce scientific evidence unavailable at the time of the trial (and contradicts the original findings of fact) for post-conviction relief.
“We feel that burden was more than carried in Robert’s case,” Sween says, “[b]ut no court has yet granted a new trial.”
Despite Sween regarding the junk science law as “trailblazing,” the faithfulness of its judicial application has been called into question.
And even beyond this one law, the common-sense entreaty to overturn wrongful and constitutionally repugnant convictions is almost always frustrated by the appellate courts. That is no recent development, either: Brown says rectification of these harms at the appellate level has always been designed to be an extraordinary feat.
“The finality principle applies to all cases from the moment of conviction. This is why the greatest opportunity for relief to an accused is at trial,” Brown explains. “The defendant is limited as to what issues they can raise on appeal and the application of the finality principle means that the burden of proof and the burden of production now fall to the defendant.”
As she explains it, appealing a conviction to an intermediate court is the first chance a defendant has to ask for relief. As a matter of procedure, appeals courts begin their review with a baseline presumption that the trial court got it right. Judges overwhelmingly defer to a jury’s fact-findings, so for the most part, appeals courts focus only on areas of law. And even if legal or constitutional improprieties are found, that does not necessarily mean that the appellate court will give the accused a lifeline.
Currently, Roberson’s only avenues for relief are as follows: he can get clemency from Gov. Greg Abbott upon the Board’s recommendation, which can take the form of a commutation (a sentencing reduction), reprieve (suspension of the sentencing) or pardon. Because direct appeals have been exhausted, the other alternative is for the CCA to change course in its Sept. 11, 2024, denial of habeas relief.
Appeals at the Texas Court of Criminal Appeals are a long shot, Brown says, pointing out that the CCA declined to review 89% of cases in 2022. And if a defendant falls into that majority, the only other avenue is a writ of habeas corpus.
“I often illustrate the shrinking window of relief as a bull's eye — at trial you have the whole target, giving you a larger window to enter for relief. On direct appeal, your window shrinks to only the two inner sections — the bull's eye and the inner ring. Chances of success are significantly more limited. In seeking relief through an application for writ of habeas corpus, your window of success again narrows — this time to only the bull's eye.”
