Robert Roberson III has known for months he was scheduled to die Thursday afternoon. A lethal dose of pentobarbital would enter his veins sometime after the hour of 6 p.m., based on what an East Texas judge ordered this summer.
Since then, the date and time had remained firm despite a number of appeals in lower courts and the nation’s highest court, the state’s parole board and Gov. Greg Abbott. That was until a Travis County judge granted a novel request from a bipartisan group of Texas House members that threw the state’s plans into question.
The lawmakers subpoenaed Roberson, a Palestine man convicted of killing his 2-year-old daughter more than two decades ago, Wednesday night to appear in Austin and testify on Monday — four days after the state was supposed to kill him.
The judge signed the order at 5:30 p.m., a half-hour before the state planned to execute the 57-year-old by lethal injection in Huntsville.
The Texas Attorney General’s Office swiftly appealed to the Court of Criminal Appeals, which overruled the lower court’s order and put execution back on track. But an appeal from the lawmakers to the Texas Supreme Court was the final say Thursday: The execution, for now, was off.
Roberson is slated to testify in person Monday about the state’s “junk” science law, which the lawmakers say was not correctly applied in his case. Gretchen Sween, Roberson’s attorney, said she did not know of the lawmakers’ plan until she was contacted to receive the subpoena on his behalf.
“I am so grateful there is a Monday,” Sween said in an interview Friday.
Roberson’s attorneys and lawmakers, including half of the Republican-controlled House, argue his case was based on shaken baby syndrome, a medical determination that abuse has caused serious or fatal head trauma. The diagnosis has come under broad scrutiny in the years since the conviction.
Opponents, which include Anderson County’s district attorney and the Texas Attorney General’s Office, contend that shaken baby syndrome was not central to securing the conviction. Multiple courts since have declined to intervene in subsequent appeals.
After Roberson testifies Monday, attorneys will again debate his fate. What the forthcoming stretch of legal sparring will entail was not clear Friday.
The Texas Supreme Court order, in part, states it does not preclude further proceedings in the Anderson County district court that convicted Roberson in 2003.
An execution order signed by a judge is required to put someone to death. Such an order comes from the convicting court. The execution date may not be earlier than the 91st day after the date the convicting court enters the order setting the date, according to the Texas Code of Criminal Procedure.
When an execution order may be sought is unclear. The statutory 91-day period between the setting of an execution date and the execution itself means that Roberson’s execution would take place in early 2025, at the earliest.
Anderson County District Attorney Allyson Mitchell, whose office tried the case, has said evidence in the 2003 trial showed Roberson had abused his daughter, Nikki.
Speaking before the House committee that later subpoenaed Roberson, Mitchell said she was certain, citing evidence in the original trial and the appeals and hearings thereafter, that Nikki’s death was a murder.
While fielding questions from lawmakers, Mitchell at times said she needed to check the record — something Sween recalled Friday.
“It’s clear there are at least some things about this case she doesn’t know,” Sween said of Mitchell, whom she said she “hopes does not rush” to seek another execution order.
Mitchell did not respond to inquiries seeking additional information Friday.
In November 2017, Mitchell told the Palestine Herald-Press she believed the death penalty could be appropriate depending on the case.
“Capital punishment is part of the law of Texas,” Mitchell told the newspaper. “Regardless of a prosecutor’s personal beliefs, he or she has sworn to uphold the law. That is what I intend to do.”
Earlier that month, with the help of the attorney general’s office, Mitchell’s office secured a conviction of a man who killed six people, including a 6-year-old and a 76-year-old, in 2015.
The scope of further appeals Roberson’s attorney may seek is also unclear.
Roberson has had his execution delayed once before. In 2016, the Court of Criminal Appeals — the state’s highest criminal court — halted the execution so his attorneys could present new medical evidence. The court, on subsequent appeals, has not intervened.
Shortly after the Travis County judge issued her order Thursday, the U.S. Supreme Court, in a separate case, again rejected an appeal from Roberson’s attorneys to step in.
A day before, the Texas Attorney General’s Office had filed a brief with the nation’s highest court arguing the execution should go forward, citing evidence from the 2003 trial.
The Texas Attorney General’s Office did not respond to an emailed list of questions Friday.
Roberson’s attorneys and lawmakers had called on Abbott to delay the execution by 30 days, something he has the authority to do.
Abbott, a supporter of the death penalty, has not publicly commented on the case. He was in Corpus Christi for an event Thursday evening but did not take questions from local reporters, according to the Corpus Christi Caller-Times.
Spokespeople for Abbott did not respond to an emailed list of questions Friday.
The one time Abbott halted an execution was in 2018 when he spared the life of Thomas Whitaker, who was set to die for the 2003 murders of his mother and brother in Fort Bend County. In that case, the Texas Board of Pardons and Paroles — which had rejected Roberson’s request — made a unanimous recommendation to grant clemency.
Among those calling for the pause in Roberson’s planned execution was U.S. Supreme Court Justice Sonia Sotomayor. The statement from the justice, who has criticized the state’s use of the death penalty before, came after the court declined to intervene again Thursday afternoon.
“Under these circumstances, a stay permitting examination of Roberson’s credible claims of actual innocence is imperative; yet this Court is unable to grant it,” Sotomayor wrote. “That means only one avenue for relief remains open: an executive reprieve.”
Earlier in the day, state Rep. Brian Harrison, R-Midlothian, said lawmakers were hopeful that Abbott would pause the execution.
“I spent a long time with the governor’s office last night,” Harrison told radio host Mark Davis. “What I would say is very fruitful and productive discussions are happening.”
The pause didn’t come.
