Texas Governor Greg Abbott remained silent about Robert Roberson

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In a state where the death penalty is as deeply rooted as cowboy boots and conservative politics, news of Robert Roberson’s death sentence spread in Texas after that rarest of phenomena: a loud, bipartisan effort to save a man from a lethal injection passed the governor’s office.

For years, appeals of Roberson’s murder conviction for the 2002 death of his chronically ill 2-year-old daughter had been winding through the courts, leaving the mark of a Byzantine process often unheard of by residents of the country’s execution capital, home to 591 people Since the reintroduction of the death penalty in 1976, prisoners have been executed in the state.

But as lawmakers made historic interventions, many Texans noted the silence of the person traditionally empowered to intervene at the last minute: Gov. Greg Abbott.

“Abbott’s silence is deafening,” said Brandon Rottinghaus, a political science professor at the University of Houston.

Ultimately, Abbott had the power to grant a 30-day reprieve to Roberson, whose lawyers claim he was wrongly convicted based on useless scientific evidence. A US Supreme Court justice urged him to take this step. Had Abbott done that, there would not have been a frantic and unprecedented rush on the part of lawmakers to issue a subpoena to Roberson and then go to court to block the execution – first before a judge in Travis County, then in both state supreme courts Texas canceled before Roberson’s execution was final.

There was no public statement from Abbott about Roberson’s case before or after. If the execution had taken place, Roberson would have been the first person in the country to be put to death in a case of shaken baby syndrome, a diagnosis that has been questioned in recent years. Multiple inquiries from the Texas Tribune to the governor’s office went unanswered.

The silence “certainly signals his willingness to go his own way against the Legislature and also reflects that, like Gov. Perry before him, the recognition that tough on crime is an essential element of national Republican muscle,” Rottinghaus said .

Silence at executions, not unusual

Contrary to the Hollywood image of a governor desperately calling to stop an execution, the reality, particularly in Texas, is far less dramatic. Texas governors can only respond to a clemency recommendation from their own representatives to the Texas Board of Pardons and Paroles. Or you can opt for the 30-day deferral.

According to the Associated Press, the Texas Parole Board has recommended a pardon in a death row case only six times since the state resumed executions in 1982. In three of these cases, death row inmates had their sentences commuted to life imprisonment. In two cases, Perry rejected the parole board’s recommendation to commute a death sentence to life imprisonment, and the two prisoners were executed.

But despite that limited power, Abbott may have inadvertently raised the Texas public’s expectations for intervention last year. He quickly intervened publicly after a jury convicted an Austin man of fatally shooting a Black Lives Matter protester. Abbott announced on social media that he would quickly seek a pardon. The parole board actually recommended a pardon a year later, and Abbott kept his promise.

But veteran court watchers say Abbott’s silence is not unusual, even in a high-profile death penalty case.

“This is typical,” said Elsa Alcala, who served for seven years as a judge on the Texas Court of Criminal Appeals, the state’s highest criminal court, before resigning in 2018. “Normally the governor doesn’t get involved.”

So far, more than 60 executions have been carried out while Abbott was governor, a fraction of the more than 200 that took place during former Gov. Rick Perry’s administration. This is the result of increasing judicial scrutiny of death sentences and an increasing number of prosecutors seeking life imprisonment instead of the death penalty.

Abbott only commuted one death sentence. In 2018, he saved the life of Thomas “Bart” Whitaker, who had launched a murder-for-hire plot that resulted in the deaths of his mother and younger brother and injured his construction company executive father, who eventually forgave his son. Whitaker’s case was reduced to a life sentence.

“Even looking back at Ann Richards, I don’t think there have been any Texas governors in the past who grant reprieves in capital cases,” said Kenneth Williams, the Fred Gray Endowed Chair in Civil Rights and Constitutional Law at Texas Tech University. “This is rarely the case in capital cases.”

Longtime Texas political observer Cal Jillson agreed.

“Governors dating back at least to George W. Bush, in the case of a mentally disabled inmate named Oliver Cruz, and to Rick Perry, in the case of Cameron Todd Willingham, have been reticent to intervene in death penalty proceedings.” “soft on crime.” said Jillson, a political science professor at Southern Methodist University.

The added fact that before his first election as governor in 2014, Abbott was the state’s longest-serving attorney general, whose office is tasked with ensuring that a court’s death sentence is carried out, may explain why Texans don’t much from them hear him in relation to the case of an individual.

“He has defended these cases, which could weigh on him as governor,” said Williams, a law professor at Texas Tech University, adding that Abbott’s lack of action in this or any other case is not inconsistent with governors in other states.

“Most governors are reluctant to grant any kind of clemency after a conviction,” he said. “I don’t think they want the backlash in it.”

How the case developed

Roberson, 57, of Palestine, was convicted in his daughter’s death in 2003 after an autopsy revealed that his daughter Nikki, who was sick with a fever, died of shaking and beating. Investigators believed Roberson’s emotionless behavior was further evidence of his guilt. Roberson has since been diagnosed with autism, which may explain Roberson’s behavior at the time. A police officer whose investigation landed the East Texas man on death row is now supporting Roberson’s claims of innocence.

On Wednesday, as both the Texas Parole Board and the Texas Criminal Appeals Court rejected Roberson’s last-minute appeals, House committee members issued their subpoena, arguing that only Roberson had unique testimony on Texas’ landmark junk science law 2013 could deliver – that Roberson had tried to prove his innocence and had failed. Last month, 80 Texas lawmakers, including death penalty advocates, wrote to members of the Texas Parole Board in support of Roberson’s clemency request.

The law is intended to give defendants a chance to prove their innocence if they were convicted based on scientific evidence that later turns out to be flawed. In fact, no Texas death row inmate has successfully used the law to obtain a new trial, leading the Texas Defender Service to conclude that the law “does not work as the Texas Legislature intended.”

The steps lawmakers took to stop the execution were unprecedented and drew some accusations of overstepping their authority.

“I will absolutely defend what we did,” said Rep. Brian Harrison, R-Midlothian, a member of the House Judiciary Committee who began investigating Roberson’s cases several months ago at the recommendation of a colleague. “We must protect the integrity of the criminal justice system.”

Harrison confirmed that lawmakers contacted Abbott after the subpoena was issued, but would not discuss the details of those conversations, describing them only as “professional and productive.”

Many of those following the Roberson saga this week were more affected by the Legislature’s actions than by Abbott’s inaction.

“What’s unusual in the case of Robert Roberson is not so much Abbott’s silence, but rather the bipartisan effort to at least delay this execution long enough to take a closer look,” Jillson said.

But Amanda Marzullo, the former executive director of the Texas Defender Service, said it was necessary for the Legislature to step in as American governors’ willingness to clemency had waned.

“We have seen a massive decline in the power of grace,” she said. “It was something governors did all the time.”

She pointed out that more than 200 years ago, a governor’s pardon power was used more frequently because the death penalty was often the punishment for far lesser crimes.

“That’s how this system was designed,” Marzullo said. “So that no single industry does all the work in a particular sector.”