The legal standoff continues over Texas death row inmate Robert Roberson and a subpoena calling for him to testify before the Texas House of Representatives Committee on Criminal Jurisprudence.

Texas Attorney General Ken Paxton blocks Roberson from testifying in person. It is unclear if and when he will testify. Nonetheless, this subpoena is the reason Roberson is still alive today. It also raised the question: Are Texas courts ignoring Roberson’s evidence of innocence?

On October 17, outside the Walls Correctional Unit in Huntsville, anti-death penalty protesters raged against the impending execution of Robert Roberson. They gather there every time there is an execution, but this time they have a much larger audience.

News media broadcasting live from the scene were set up to cover Texas’ biggest news stories and what could have been Roberson’s final hours.

Executions in Texas generally attract little media attention. But that changed when a bipartisan group of state lawmakers said Roberson was likely innocent of the murder of his two-year-old daughter, Nikki.

Prosecutors had said Nikki died of shaken baby syndrome, debunked. Experts say it’s more likely she died of pneumonia and Roberson is innocent. But Texas was determined to execute him anyway.

The courts refused to hear new exculpatory evidence. Governor Abbott refused to grant Roberson a 30-day reprieve. And Attorney General Paxton fought to have Roberson executed despite the subpoena.

“Well, my experience with governors and attorneys general is very consistent in that they take a tough stance on sentencing,” said Sam Bassett, a criminal defense attorney based in Austin. Their argument, he said, is that the justice system must be final when a sentence is handed down, but the death penalty must meet the highest standards.

“I think the death penalty is the ultimate sanction, the ultimate punishment. And it is irreversible once achieved. And you can’t say later: “oops, we were wrong.” The person is already in the grave,” he said.

Kristin Houle Cuellar is the executive director of the Texas Coalition to Abolish the Death Penalty. She said it’s clear that Abbott, Paxton and the Texas Court of Criminal Appeals do not hold the death penalty to a high standard at all.

“The case of Robert Roberson lays bare everything that is wrong with the Texas death penalty system,” Cuellar said.

And she said Roberson’s case had many problems. “And that includes grossly incompetent legal representation at his trial in 2003. (There was) a rigid and indifferent judicial system that has thus far refused to consider the overwhelming scientific evidence of his innocence despite a Texas law created exactly for that. It also includes a pardons and parole committee that operates without transparency,” Cuellar said.

Cuellar said there are so many troubling questions about this case that it should make every Texan reexamine how they feel about the death penalty.

“We know for a fact that innocent people have been sentenced to death in this state and we also have significant evidence of people who were executed despite strong claims of innocence,” she said.

But pollster Jim Henson of the Texas Politics Project says that doesn’t bother many Texans.

“One of the things we did periodically was ask people directly, ‘How often do you think people are wrongly convicted of capital offenses in the state of Texas?’ And what we found is that only 28% answered “never” or “almost never”, but also only 14% answered “most of the time”. The majority – about half (or) 46% – say “occasionally” – it happens from time to time,” Henson said.

Henson found that although about half of Texans say Texas sometimes executes innocent people, they remain largely supportive of capital punishment, even though support for the death penalty has wavered in recent years.

“Support for the death penalty began to increase a bit in the early 20s, from about 63% in mid-2021 to 69% again in December 2023,” he said.

Henson did not believe that media coverage of Roberson would change Texans’ opinions despite claims that the state was willing to kill a likely innocent man.

He said it was a unique news event in a noisy media environment, with a particular focus on the election. For public opinion to change, we need more Robert Robersons and more big questions about the fairness of the death penalty in Texas.

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