By Jasper Scherer and Terri Langford, The Texas Tribune
Eleven years ago, Texas lawmakers passed what would become known as the state’s “junk science” law, allowing courts to overturn convictions later found to have hinged on discredited forensic evidence.
It was the latest in a series of bipartisan reforms, starting around the mid-2000s, aimed at rethinking Texas’ uncompromising lock-‘em-up attitude that had made the state the face of mass incarceration in America. With the state prison system buckling, lawmakers fashioned a new bipartisan approach that rejected calls for more lockups and focused instead on treatment and diversion, winning national acclaim that was also later extended to the first-of-its-kind junk science law.
That statute is drawing renewed attention as a bipartisan group of House lawmakers embark on a last-ditch attempt to forestall the execution of Robert Roberson, who has turned to the law to dispute his 2003 conviction for killing his 2-year-old daughter, Nikki. Roberson’s lawyers have presented evidence they say invalidates the finding that his daughter died from shaken baby syndrome, a serious brain injury that critics say has been too broadly applied, including in cases where a head injury could be the result of an accident.
Roberson’s appeal has underscored the fact that Texas’ highest criminal court has never granted a new trial to anyone on death row under the junk science law. And as the statute has remained hamstrung for the last decade, so too has Texas’ broader pursuit of criminal justice reforms, according to critics who say Republican leaders have focused instead on reining in urban, progressive prosecutors and trying to keep defendants behind bars while awaiting trial.
Such efforts have upstaged the push for bipartisan criminal justice measures, which in recent years has largely been confined to the Texas House, with proposals on everything from loosening penalties for low-level drug cases to curbing the death penalty. Most of these bills have died in the Senate.
Roberson’s case embodies these clashing priorities on criminal justice, with the exoneration effort led by a broad ideological range of House Republicans, while Lt. Gov. Dan Patrick, and all but one Republican in the Senate chamber he oversees, has remained silent on the case.
The House intervention has met outright resistance from other GOP figures who, like Patrick, have driven the party’s recent focus on policies rooted in law and order and combating local officials. Among them is Attorney General Ken Paxton, who on Wednesday night blasted the House’s effort in a statement, attaching an autopsy report and other evidence he said would “correct falsehoods amplified by a coalition interfering with the capital punishment proceedings.”
Paxton’s statement accused lawmakers of using shaken baby syndrome as a straw man to deflect from evidence suggesting Roberson’s daughter died from blunt-force head injuries. The argument echoed what other leading voices on the party’s rightmost flank had been saying in recent days, including former Texas Republican Party Chair Matt Rinaldi and hardline activist Michael Quinn Sullivan, who this week slammed House members for what he characterized as an attempt to “protect a wife-beating child-killer.”
State Rep. Joe Moody, the El Paso Democrat who has helped lead the exoneration effort, said Paxton’s statement contained no new facts, “only a collection of exaggerations, misrepresentations, and full-on untruths completely divorced from fact and context.” He vowed to issue a response Thursday that would “completely undermine” the statement.
Doug Deason, a Dallas businessman and GOP donor who has played a key role advocating for criminal justice reform on the right, said Paxton’s statement was “completely unhinged from reality.”
“Whoever wrote and released it should be evaluated for mental competence by the AG’s office,” Deason wrote on social media.
Also opposing the House’s intervention is Gov. Greg Abbott, who has included tougher bail laws among his list of “emergency items” — priorities that lawmakers may take up immediately — in each of the last two legislative sessions. Abbott, who so far has only commuted one death sentence since taking office in 2015, rebuked the House’s attempt to stop Roberson’s execution this week.
And yet, some criminal justice observers are optimistic that the effort to exonerate Roberson — which has drawn national attention and the support of lawmakers across the ideological spectrum — could inject new life into the movement.
“This has actually been a real boon for reenergizing the bipartisan criminal justice reform effort in Texas,” said Marc Levin, a leading policy voice in the conservative push for criminal justice reform in Texas.
Levin, who is now chief policy counsel for the Council on Criminal Justice, a nonpartisan think tank, noted that some of the House’s most conservative members have signed onto the exoneration effort, including state Rep. David Cook, who is trying to wrest control of the gavel from GOP Speaker Dade Phelan, and other of Phelan’s loudest detractors from the right. That prevents Phelan’s critics outside the chamber — many of whom have also condemned the House’s intervention — from “pigeonholing” the effort as merely something being pushed by the speaker, or framing it as a battle between moderate and hardline conservatives, Levin said.
“Clearly, it goes beyond the speaker’s race,” Levin said. “It demonstrates this is really organic and got support even on the most conservative end of the Republican Caucus in the House. So, this is something that is here to last, regardless of who’s speaker.”
House and Senate tension
Still, any momentum generated by Roberson’s case would require buy-in from the Senate, the main source of Texas’ stalled movement on bipartisan criminal justice policy, according to advocates.
“You know, the Texas House has been pretty wonderful for the last decade,” said Elsa Alcala, a former Court of Criminal Appeals judge who was elected as a Republican but switched parties shortly after leaving the bench. “The problem is the Senate. The Senate is where criminal justice legislation goes to die.”
Case in point was the 2019 legislative session, Alcala said. After stepping down from the state’s criminal appeals court the year before, she became policy director for the Texas Defender Service, successfully lobbying for two bills that sailed through the House with bipartisan support.
The first was a bill that would have established a process to determine whether death penalty defendants are intellectually ineligible for prosecution. The move came nearly 20 years after the U.S. Supreme Court ruled that executing people with intellectual disabilities amounts to cruel and unusual punishment. The second measure would have allowed a new trial for criminal defendants if both the prosecutor and the defense agreed to do so because it was in the interest of justice.
However, once those two bills were before the Senate, “everything died,” Alcala said.
“Patrick opposed a lot of the reform legislation, well, all of it and so there, you know, there was just no moving it,” she said. “We had all these wonderful bills pass the Texas House pretty decisively. And then when we got to the Texas Senate, the door was just slammed on our faces.”
Steven Aranyi, a spokesperson for Patrick, disputed Alcala’s portrayal of the Senate’s criminal justice approach. He noted that the chamber has worked closely on the issue with the Texas Public Policy Foundation, a conservative think tank that works to advance criminal justice reform through its Right on Crime initiative.
The 2019 bill to allow for new trials came over from the House late in the session, Aranyi said, and lacked enough support on the Senate’s Criminal Justice Committee to garner a hearing. As for the death penalty bill, Aranyi noted that the measure passed the Senate with unanimous support, but died after the two chambers were unable to reconcile changes to the bill in a conference committee.
“The House took an ‘it’s my way or the highway’ approach,” Aranyi said. “That’s on the House, not the Senate.”
Not every senator was hostile toward reform, Alcala said. Quite the opposite. “Some of the senators were really lovely to us … they seem to see the common sense of what we were trying to do.”
But in the end, Alcala said, it didn’t matter because the Senate rules allow Patrick, the chamber’s presiding officer, to prevent any bill from reaching the floor.
House mobilizes against death penalty
Amanda Marzullo is an attorney and advocate who has worked on clemency campaigns for death row inmates and helped craft several changes to the Texas legal system.
She said she’s seen a “growing nuance” toward the death penalty in recent years by the Legislature. In 2015, lawmakers passed a new law that for the first time gave defense attorneys official notice when one of their clients’ executions was set by prosecutors.
In 1976, the U.S. Supreme Court reinstated the use of the death penalty. Since then, 591 inmates have been put to death in Texas, the most in the nation. But the pace of executions has slowed considerably from the 1990s.
Death row appeals are costly and in 2005, Texas became the last death penalty state to offer prosecutors the option of sentencing capital murder defendants to life without parole.
About 10 years ago, Texas lawmakers began asking more pointed questions about how the death penalty is applied. The result of all these factors is a broad coalition of Republicans and Democrats who have supported clemency in specific cases since about 2016.
In that year, state Rep. Jeff Leach, R-Plano, worked, as he did in Roberson’s case, to halt Jeffery Wood’s pending execution for the 1996 death of a gas station clerk. Wood was sentenced to death even though it was his accomplice who killed the clerk. That accomplice, Daniel Reneau, was executed in 2002 and Wood remains on death row. Since then, Leach and Moody have formed the House Criminal Justice Reform Caucus, and have been vocal in their support of other death row inmates, including Melissa Lucio and Rodney Reed.
For criminal justice advocates like Alcala, House lawmakers’ determination to bring the Roberson case before them and consider where past law changes have fallen short has been welcome.
“It was pretty surprising to see how much they had invested of themselves in the whole thing,” Alcala said.
That reception may make the silence from the Senate more noticeable from the public’s perspective but not surprising, some say.
“I think it’s a bunch of things all at once,” Marzullo explained in an email. “The politics within the Republican Party are fraught right now, which would make any experienced politician reticent to speak out on (potentially) controversial topics.”
Also, she pointed to how funders have withdrawn from criminal legal reform in Texas, leaving members with less support from outside the Capitol.
The House, Marzullo said, is more insulated from these factors because so many members serve on the Criminal Jurisprudence Committee at some point in their tenure or are part of the chamber’s bipartisan caucus dedicated to these issues.
Also supporting the intervention in Roberson’s case are a number of lawmakers who do not serve on the Jurisprudence Committee or, for that matter, have any legal background. State Rep. Kronda Thimesch, a Lewisville Republican who runs a landscaping business and previously served as a school board trustee, said the case quickly struck a chord with her as she learned about the range of evidence never presented at Roberson’s trial — such as medical records outlining his daughter’s severe illness — and the use of testimony from a nurse who claimed to see signs of sexual abuse before admitting she was not certified to identify such cases.
“I think that really resonated with me, that with Robert, he was never given an opportunity to have a fair seat at the table of justice,” said Thimesch, who visited Roberson on death row last month with several House colleagues. “I don’t see how anyone, in good conscience, could read and look at what’s happening and not” think Roberson is innocent.
During her testimony before the House committee this week and in interviews, Alcala has been taking her former workplace, the Texas Court of Criminal Appeals, to task for what she described as a hyperfocus on legal technicalities to disqualify junk science appeals. Her critique echoed the findings of a recent study by the nonprofit Texas Defender Service, which also concluded that such appeals were routinely batted down on technicalities.
“The way that it’s being treated by the Court of Criminal Appeals is absurd,” Alcala said. “They’re not even looking at the substance, you know that? That’s insanity.”
In recent years, House lawmakers have tried to resolve some technicalities cited by the court. The House passed legislation in 2023 that would have expanded the junk science law by allowing the court to consider new scientific evidence not only when doing so could overturn a conviction, but also when it could yield a lesser sentence.
The bill was prompted by the court’s interpretation that the junk science law can be used only to reconsider someone’s guilt, not the degree of punishment. It passed the House with 144 votes in favor and one against, then was never referred to a Senate committee.
The outlook on criminal justice policy
Levin, the conservative criminal justice advocate, said he hopes Roberson avoids execution. But in the meantime, he admitted he is “kind of giddy about what it could portend going forward” — including for the array of measures that passed the House last session with bipartisan support but went nowhere in the Senate.
Those included bills that would have barred use of the death penalty for people with severe mental illness or conspirators who did not pull the trigger and did not intend for anyone to be killed.
The Senate also declined to take up proposals to lower the penalty for possessing less than an ounce of marijuana and expand the types of cases that can be referred to a drug court, as long as the prosecutor and judge consent. The upper chamber also rejected House bills to expand the sealing or expungement of criminal records, along with a so-called “second look” bill that would move up the parole eligibility date for people serving sentences for felonies committed before they turned 18.
When Rodney Ellis left the Senate chamber in 2016 after serving there for 26 years to run for the Harris County Commissioners Court, the Democrat left behind a storied criminal justice reform legacy. Among the highlights, he authored and helped pass legislation that overhauled the state’s indigent defense system, established an advisory panel to identify factors that contribute to wrongful convictions and helped create the Office of Capital Writs, which advocates on the behalf of indigent defendants sentenced to death. Ellis also penned the Michael Morton Act, which requires prosecutors to disclose evidence that would call into question a defendant’s guilt or affect a sentence.
In the 1990s, Texas created a meager fund to compensate criminal defendants who were wrongly imprisoned, if their conviction is thrown out and a judge, prosecutor or appellate court declares them to be “actually innocent.” Then in 2005, as part of these legislative reforms the compensation was increased. As of Oct. 1, more than $179 million has been paid out to exonerees, according to the comptroller’s office.
For Ellis, watching his former colleagues move to halt an execution last week was fascinating, he said.
“I’m proud of them,” Ellis said. “I do think we’re at a critical crossroads when you try to figure out what pursuit of justice means. This case does underscore the very real dangers of wrongful convictions in our legal system.”
While he hopes to see more Texas senators take a greater leadership role in criminal justice reform, he recalled how after the Michael Morton Act was passed in 2013, he could read a growing pressure in the chamber against criminal justice reform.
“I could sense it coming,” Ellis said.
Years after Ellis left, following the killing of George Floyd in 2020, that aversion to criminal justice reform in the Senate seemed to have “crescendoed,” he said.
Levin said that while the Legislature is poised for another clash next year over denying bail to people accused of violent crimes — “the issue that Patrick is most concerned about,” he said — there is reason to believe that with crime rates reverting to pre-pandemic levels and calls for police reform diminishing, Texas could be moving beyond the polarizing trends that have sapped the political will for bipartisan criminal justice work.
“Outside of [the bail issue], I think there’s still a lot of opportunity on these other matters, especially concerning reentry and getting people back in the workforce who have a conviction,” Levin said. “I think we’ve got an opportunity, even in the Senate, to get some of that stuff across the finish line.”
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2024/10/24/texas-legislature-criminal-justice-robert-roberson/.
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