Roberson hearing in the Texas House, without Robert Roberson
Posted/updated on: October 21, 2024 at 8:09 pm
AUSTIN – It was a packed committee room Monday in the Texas House. According to our news partner KETK, legislators met with witnesses to listen to testimony in the case and conviction of Robert Roberson of Palestine. Roberson is on death row for a crime that is now being called into question. He was found guilty in 2003 of killing his 2-year-old daughter, a conviction for which he was set to be executed last Thursday. A ruling from the Texas Supreme Court spared him in the 11th hour, citing concerns about a last-minute subpoena ordering Roberson to be present for House testimony about his case on Monday.
The Texas Department of Criminal Justice would only allow Roberson to attend the proceedings virtually, an accommodation which Roberson’s attorneys and the House committee alike argued would not be acceptable. Given that Roberson has been diagnosed with autism, and he has been in custody for more than two decades, his attorneys argue that his ability to effectively communicate would be severely impeded in a virtual setting.
On Monday’s witness list was TV personality Dr. Phillip McGraw, Novelist John Grisham, Former judge on the Texas Court of Criminal Appeals, Elsa Alcala, Terry Compton, a juror from Roberson’s 2003 trial and Gretchen Sween, Roberson’s attorney.
The Texas House Committee on Criminal Jurisprudence came together on Monday and started by reiterating that their job was not to determine guilt or innocence, but to analyze a junk science law they say has not been fairly applied to death penalty cases, including Roberson’s.
“It’s not about guilt or innocence,” Rep. Drew Darby said. “Guilt or innocence will be a byproduct of our hard work.”
Judge Alcala was called after Compton, and she attended the hearing from another state via Zoom. She explained that she was a judge on the Texas Court Criminal Appeals when the junk science writ became law in Texas in 2013. She served on the CAA from 2011-2018. Alcala cited Justice Sonya Sotomayor’s opinion penned when the U.S. Supreme Court declined to hear Roberson’s case, raising three of her main points and going on to state that the junk science legislation, in its current form, is problematic for the courts.
“The court, in all respects, views legislation quite narrowly,” Alcala said. “So, for example, in this statute… it requires that, had the scientific evidence been available at trial on the preponderance of the evidence, the person would not have been convicted. Frankly, there’s two parts of that that I think are problematic. One is the burden of proof of preponderance of the evidence, and the second is the language that the person ‘would not have been convicted.’ I think the Court of Criminal Appeals is looking at both of those terms harsher than it should.”
Preponderance of evidence, Alcala explained, means “more likely than not”– and that is a high bar to clear for a new trial.
“So what the defense has to do to obtain relief over junk science, is to say that given the new science or what we now know about science, more likely than not, the person would not have been convicted,” Alcala explained.
Rep. Drew Darby raised issues with those standards.
“Is that bar too high?” Darby asked. “They have to prove their innocence before you can even have the court consider a new trial.”
Alcala went on to propose changes in language to the junk science law that could, in the future, make it more effective and applicable for difficult cases, including changing “preponderance of evidence” to “probable cause.” She also brought up a unique facet of Texas’s highest courts– a bifurcated system that separates civil issues from criminal issues. The Texas Supreme Court handles civil issues, the Texas Court of Criminal Appeals handles criminal issues.
“I believe the criminal specialization has turned the court into a body that has really lost its common sense,” Alcala said. “It’s looking for all these technicalities, and the criminal law has become much more prosecution-favorable in Texas than in other states.”
The next witness was Donald Salzman, a lawyer who works as pro-bono council and has experience in the past working on several cases involving shaken baby syndrome, now known as abusive head trauma.
Salzman testified that, as a lawyer covering these kinds of cases, he has seen the science and understanding of shaken baby syndrome shift first-hand. Previously it was diagnosed if medical providers noticed three specific trauma symptoms in a child. Now, it is only diagnosed in absence of other plausible medical causes. As former juror Terry Compton testified, the jury at the time was not given information about Roberson’s daughter’s serious ailments, including severe pneumonia that turned into septic shock.
Salzman talked about efforts to coordinate with Anderson County officials.
“The Innocence Project reached out to DA Allyson Mitchell when they got involved in the case and asked to meet with her. She was polite, but she did not openly discuss the case,” Salzman said. “I had a chance to be in Palestine, Texas in April of this year. We were reviewing their records… and that was when I learned that they were planning to set Robert Roberson’s execution date. I asked Allyson Mitchell if she would meet with us to talk about the new evidence that we had discovered and developed, and she said she was not willing to do that.”
Salzman also discussed rumblings of sexual abuse of Roberson’s daughter– a claim which he and the committee said is unfounded.
“Has there ever been a scintilla of substantiated evidence to support that [sexual abuse] claim?” Rep. Brian Harrison asked.
“Absolutely not,” Salzman responded.
Salzman said there was no suspicion of sexual abuse before Nikki’s sexual assault examination. Instead, nurses saw a child with trauma they felt were not adequately explained by the father, and investigated further. What exactly led to a suspicion of sexual abuse is unclear.
The claim was brought about by a self-proclaimed Sexual Assault Nurse Examiner, who was later found to be lacking official SANE credentials.
“She testified on direct that she was a certified sexual assault nurse examiner, then she admitted on cross examination that she had never been certified,” Salzman said.
The nurse performed an examination on Nikki in 2002 “of her own volition,” according to the committee, and told the 2003 jury that she found evidence of sexual assault on Nikki. The “evidence” of sexual assault was a single anal tear– a physical ailment that a Dallas nurse said is not necessarily a sign of trauma, but more likely explained by Nikki’s bout with diarrhea before her death.
“Before the trial began, the trial judge overruled an objection from the defense about the admissibility of sexual assault evidence, but the trial judge said to the prosecution, and again I’m paraphrasing, ‘You need to treat carefully, because if you don’t prove this allegation, it’s grounds for a mistrial.’ But no mistrial was granted,” Salzman explained.
Kate Judson, an attorney from Wisconsin who is also the Executive Director of the Center for Integrity in Forensic Sciences, offered context on Roberson’s case based on her work on shaken baby syndrome over the years.
“In SBS, trying to acknowledge some ambiguity does not resolve the fundamental problem, which is at its core that we do not know how accurate doctors are at looking at the findings associated with abuse and determining whether abuse occurred, but we know for sure that their error rate is not zero, and we know that for a few reasons,” Judson explained.
She said there are 34 exonerees of people accused of crimes based on the shaken baby syndrome hypothesis– 34 people who are now shown to be innocent. Additionally, she said the American Medical Association estimates the error rate of shaken baby syndrome to be from 10-20%.
“The error rate for diagnosing you with a broken arm or strep throat is pretty low, not zero, but pretty low. Those are straightforward tests that can be done to establish whether or not you have a condition. You might do a bacterial culture in one case, you might do an x-ray in one case, and those are straightforward diagnoses to make,” Judson said. “But, the error rate is higher when diagnoses are exclusionary, when they’re not well established, and when they require high degrees of subjectivity, so that’s exactly this case.”
Prosecutors now argue that the original prosecution didn’t rely only on shaken baby syndrome, but that claim was refuted by several people including a juror on Roberson’s case. Judson said the tactic of changing the “trial theory” is an effort to avoid new problems with old science presented at trial.
“The fact that they’re trying to change the theory now means the original was fatally flawed, and in the end there’s really no genuine doubt that this was an SBS case,” Judson said. “Everything else is kind of cognitive gymnastics to try to make the now-discredited testimony fit with the new science. If prosecutors want to do that, they need to do it at a new trial.”
Rep. Joe Moody said Judson has “an enormous amount” of credibility in SBS. When he asked her directly based on her background if the Texas courts should reopen Roberson’s case and give him a new trial, she replied, “Absolutely. There’s no question in my mind that he deserves a new trial.”
