October 14, 2025 • 37 mins
In this week’s episode, the TribCast crew is joined by Tribune reporter Kayla Guo to break down the evidence in the Robert Roberson death penalty case.
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Episode Transcript
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Speaker 1 (00:16):
Hello, and welcome to the Texas Tribune trip cast for Tuesday,
October fourteenth. I am Matthew Watkins, editor in chief of
the Texas Tribune, joined as usual by Politics and Justice
reporter Eleanor Klebanoff.
Speaker 2 (00:30):
Hell, still not my title, Law and.
Speaker 1 (00:33):
Politics, Law in politics, politics, justice.
Speaker 3 (00:36):
Politics, the you know, law and order and CSI and
justice politics reporter.
Speaker 1 (00:42):
Yeah. I will get it at some point, or maybe
I won't. Yeah, maybe not. Keeps working. How are you doing.
Speaker 2 (00:48):
I'm doing well. And there's a real full chill in
the air.
Speaker 1 (00:51):
Oh yeah, low nineties.
Speaker 2 (00:52):
Yeah, it's amazing.
Speaker 1 (00:54):
Yeah, I really enjoyed that at acl Fest.
Speaker 2 (00:57):
Yeah, were you at a cl I was, and.
Speaker 1 (01:02):
I continue to be too old for them. I only
went on Saturday with my daughter and my wife. Daughter
very excited to see Sabrina Carpenter. I went and saw
the Strokes because, as previously mentioned, I'm old, and yeah, yes,
it was a great time.
Speaker 3 (01:21):
You just threw your daughter into the Sabrina crowd and
we're like, we'll meet back at A at the end.
Speaker 1 (01:26):
Yeah. Well, so basically, my daughter had a soccer game
at eight am in San Antonio, so we had to
wake up at six and driver to San Antonio and
then we drove back and then we got to the
festival at around two two thirty and then got ended
up getting home around like midnight. So it was an
incredibly long day and my daughter was like, this is
(01:47):
too much. So they like actually like stayed back and
worked in the mix. I was watching the Strokes and
also watching the texting and football game on my phone.
Speaker 3 (01:57):
Yes, fair, fair, like whole is like the first part
so beautiful, like getting to share a music festival with
your child.
Speaker 1 (02:04):
Yeah.
Speaker 3 (02:05):
The setup of after driving her at six am to
a soccer game is like a real mixed bag on parenthood.
Speaker 1 (02:13):
Yeah you know. And then she was like convinced that
she had lung cancer because of all the people who
were smoking. And I was like, actually, that pain you
feel on your legs is actually all the dust.
Speaker 3 (02:22):
Right, yeah, you're like you can smoke a ton, don't
even more like honestly, the smoking's not the profitable Yeah.
Speaker 1 (02:27):
Yeah, so anyway, nice.
Speaker 3 (02:30):
I did not go to a cl this year, but
most I was most would have gone to see Tea Pain.
Speaker 1 (02:35):
So I went to the first ten ACL fests and
then I retired, So I was like, this is too
it's too much, and then I went enough since then
to forget how terrible it is.
Speaker 2 (02:47):
Yeah, every time it's a new Yeah, Yeah, it was.
Speaker 1 (02:50):
Actually pretty fun. Japanese Breakfast actually was the best show
with that band. Yeah, really great.
Speaker 2 (02:55):
Yeah.
Speaker 4 (02:56):
Did you go to IC I did. I had a
very chaotic experience. I did not have tickets, so me
and my friends got their Sunday at four pm and
I held up a sign that said need four wristbands.
Speaker 2 (03:11):
Had they were quo.
Speaker 4 (03:12):
The scalpers were quoting us like four hundred dollars for
like five hours left of the vessel, So we posted
up at lose and I held up my sign. Eventually
did manage to get too, so I went in and
saw two DJs.
Speaker 1 (03:27):
Interesting.
Speaker 2 (03:28):
I will say I've said it before, I'll say it again. Kala,
We're very different people.
Speaker 1 (03:33):
That voice you heard was indeed Kala Glow are politics reporter. Yes,
I know.
Speaker 2 (03:39):
Kayla's more straightforward, yeah, fancy.
Speaker 1 (03:43):
But this week she is here to talk to us
about Robert Roberson, who was at least coming into this
week when we scheduled this podcast scheduled to be put
to death by the State of Texas for the two
thousand and three conviction for killing his daughter. His case,
as you may know, has become a high profile cause
(04:03):
for death PILNY opponents who believe Texas might be trying
to execute an innocent man. But on Thursday, the state's
highest criminal court delayed the execution for the second time
in less than a year. It was a second time
in less than a year that Robson was essentially days
away from being executed and a court stepped in to
block it all. Through this whole process, really, this whole
(04:25):
past year, some of Texas's highest profile politicians have been
fighting over the Robson case, in a fight that sort
of breaks down under sort of non ideological lines. It's
been sort of an interesting mix of lawmakers on both
sides of the issue. But I will speak for myself.
I won't speak for you Eleanor, but at least for myself.
(04:45):
As this fight has been going on, it's been a
bit challenging to sort of make sense of the facts.
I would say both sides seem very certain and confident
in their position as to whether Robert Roberson did this. So, Kayla,
you are here to break it down for us. Thank
you for joining us on the podcast.
Speaker 4 (05:04):
Thanks for having me.
Speaker 1 (05:05):
Even after an eventful ACL festival. So let's just start
with the basics here. Can you tell us about the
crime that Roverson is accused of.
Speaker 4 (05:15):
Yes, he is accused and was convicted of murdering his
two year old daughter, Nicki. He was convicted in two
thousand and three. She died in two thousand and two
and at the time when he brought her to the hospital,
the nurses and doctors he had said that he had
woken to find her fallen from the bed and she
was unresponsive, but he didn't know what was going on.
(05:38):
She had been really sick in the weeks leading up
to that, but at the hospital, the doctors and nurses
didn't think that, you know, a fall could have caused this,
and so they saw the signs that at the time
told them to diagnose her with shaken baby syndrome, which
is basically when a child or a baby is shaken
so violently that they are really injured or die. So
that is what he was convicted of in two thousand
(06:00):
and three. He has maintained his innocence over the past
twenty plus years on death row. But you know, even
at his trial, his defense layer didn't pursue that innocence claim.
Didn't you know, defend him as if believing that he
were innocent. And so now you know, medical consensus has evolved.
His lawyers have presented evidence they say debunks that Jake
(06:24):
and baby diagnosis and that there was no crime.
Speaker 1 (06:27):
Okay, let's let's get into that. Now, why do people
believe Why do the people who believe he's innocent believe
he is innocent?
Speaker 2 (06:38):
There is a lot.
Speaker 4 (06:39):
So in the midst of all this, Texas in twenty
thirteen passes a pretty groundbreaking law, the Junk Science Law.
Texas was the first in the nation to do. A
bunch of states have followed suit, and that provides for
second looks in cases where the conviction rested on science
that has since been discredited and recognizes that while the
(07:00):
law is final, and you know, convictions are final, science
and evidence evolves, like you think of things like my
bite mark hypotheses. You know, people used to think that
you can match someone's teeth up to a bitemark, and
that is just not like held up in science anymore.
So we pass this law in twenty thirteen that Roberson
supporters think he is the poster child for to receive
(07:23):
relief under and so a few things have happened since
then as well. The medical guidance doesn't say to diagnose
shake and baby syndrome when the three symptoms that it
previously said to do it appear for it says you
have to consider other factors before concluding abuse. His lawyers
(07:44):
argue that things like sicknesses, accidents, those can call cause
these three symptoms as well. It's bleeding behind the retina,
some things in the brain.
Speaker 2 (07:56):
Swelling, yeah, bleeding.
Speaker 4 (08:00):
And so the medical consensus around how to diagnose shake
and baby syndrome. It's still real, you know, but baby
can still be really injured if they're violently shaken. Today
it's not called chicken baby syndrome anymore, but how to
diagnosis that guidance has changed. And his lawyers also point
to evidence about Nikki that wasn't considered at trial as closely,
(08:22):
that she was, you know, really sick in the days
leading up to it, that she was prescribed medication that's
no longer given to children her age, and they also
point to flaws with how the autopsy was conducted, things
with how Niki was handled at the hospital. So there
are just a bunch of different, evolving, shifting things that
(08:42):
have led people to say that it's not totally clear
that he shook his baby to death and should be
executed for it.
Speaker 3 (08:49):
Right, there's sort of like correct, been wrong, right, but
like two separate things here, one of which is like
the actual facts of his specific case. And also, as
you're saying this like consensus on shaking baby syndrome, that
the junk science law doesn't say, oh, if you were
conviction on something that has since been thrown out as
like you can't possibly have done it. It just says
(09:10):
like you should get a second look at your case
and we'll like reassess it on modern medicine, And a
big part of that is like the idea that what
we now know is doctors used to be told, like
pediatricians especially like if you see or like if you
see these three symptoms the triad, like assume it's shaken
baby syndrome and proceed from there, which sort of his
(09:33):
lawyers of art you sort of like taint the whole
thing from the jump. We now know that a lot
of things can cause that, and that you know, often
to shake a baby so hard to cause them to die,
you might see other symptoms too, like a broken neck.
Speaker 2 (09:45):
Sure, exactly, Yeah, yeah.
Speaker 1 (09:48):
It's it's well, actually, I want to go back a
little bit and more into the arguments on both sides here,
but let's kind of continue with our history lesson first. Right,
So he was is scheduled to be executed last year,
and two state lawmakers really took up his cause. Jeff Leech,
(10:09):
a Republican from the Colin County area north of Dallas,
and Joe Moody, a Democrat from the Alpaso area, tell
us a little bit about the dramatic actions they took
to block the execution the first time here last year.
Speaker 4 (10:28):
Yeah, well, I just want to note this was not
last year, was not the first time his execution was blocked.
The Court of Criminal Appeals in twenty sixteen actually stayed
his execution using the junk science law, saying that it
provided a second look. So his case went back to
trial court that had an evidentiure hearing. But the court
in Anderson County and the prosecutor, you know, maintained that
(10:49):
the evidence was still convincing of his guilt, and so
that's what they recommended to the CCA, and the CCA
agreed Robertson's lawyer thinks that, you know, they never really
meaningfully engaged with all the evidence she brought up, but
that sort of covers the span between twenty sixteen up
until twenty twenty three. Is when his execution data set
for twenty three four last year, which is when all
(11:11):
these lawmakers get involved and sort of set off this broader,
more dramatic saga, political saga. I think it was in
the month before his execution was set to take place,
more than half I think it was something like two
thirds of the Texas House sign onto a letter urging clemency.
(11:31):
A few people have since walked back their support, like
Tom wulliverson Briscoecine. But these lawmakers, you know, they were
suggesting that maybe there was sufficient doubt to put a
pause on the whole thing. The House Committee on Criminal Jurisprudence,
which at the time Joe Moody chaired, and I believe
Jeff Leach was the vice chair at the time, they
(11:53):
held a couple of hearings before the execution was set
to happen, and then the most dramatic moment happened the
day before Roberson was set to be executed. They brought
in a bunch of experts to testify as an all
day hearing. Sometime in the middle of the day, the
decision came from the Board of Pardons and Paroles that
they were going to reject his application for clemency, which
meant that only Governor Greg Abbott had the power at
(12:16):
the time to issue a thirty day stay, which he
did not do. At the end of this long, all
day hearing, the committee, I believe it was a motion
by Representative Brian Harrison, who's a Republican from Midlothian.
Speaker 2 (12:29):
He raises this motion to.
Speaker 4 (12:31):
Subpoena Robert Robertson, instructing him to come testify before the
committee a few days after he was scheduled to die.
So that sets off a whole whirlwinds the next day,
and eventually the Texas Supreme Court steps in saying that
this is a separation of powers issue between the executive
(12:53):
and legislative branches of government. So the subpoena went out,
or the executive branch's authority to execute him went out,
and that leads to his execution being temporarily stayed, and
eventually the Supreme Court says the lawmakers stepped a little
bit too far, and Robert's execution was put back on
the calendar this year and until last week was set
(13:15):
to happen in two days from Luma recording and.
Speaker 1 (13:18):
The idea back then there was essentially, you can't execute
someone who we're asking to come testify before us Abbot.
Speaker 3 (13:25):
Where you can't testify if you've been executed, so right, right, right.
Speaker 1 (13:29):
You can't. You can't execute We need him to, yeah,
get in, so so don't don't And Abbott and others
basically essentially make the case that this is sort of
a they are taking away the power of the governor
to kind of make decisions on these, when it's essentially the.
Speaker 3 (13:47):
Right anyone could subpoena anyone then and say, you know,
we're never going to execute anybody.
Speaker 1 (13:52):
Yeah, okay. So then the decision from the State Criminal
Court of Appeals, we should mention a nine member court
all republics, all elected statewide, that focus on basically the
top criminal court in the state, issues a decision on Thursday.
Tell us what that decision said.
Speaker 4 (14:12):
That decision it so, first of all, it didn't roll
on the merits of Robertson's claims that you know, this
was junk science, or that Nikki.
Speaker 2 (14:21):
Died from other causes.
Speaker 4 (14:23):
In fact, dismissed a bunch of his appeals claiming judicial
misconduct and other things, but it told the trial court
in Anderson County to look again at Robert's case in
light of a decision the criminal court made last year.
So in the midst of all the subpoenas stuff going on,
and the Court of Criminal Appeals overturned the conviction of
(14:47):
a man out of Dallas County who was convicted based
on a shaken baby syndrome diagnosis. In that decision, the
Court of Criminal Appeals, you know, acknowledged that these science
and medical consensus around shaking baby syndrome had evolved since
that conviction, and so they overturned that guy's connection. His
name was Andrew work Is, Andrew Worke, and Roberts attorneys
(15:10):
had been, you know, citing that case as if you're
going to acknowledge changing science in Andrew Worke's case, we
think it should apply here as well. His attorney. Robert's attorney,
Gretchen Schwen called the cases materially indistinguishable, and so that
had been a point in her filings to the court
since then. And so on Thursday, the CCA told the
(15:32):
trial court to look at Robertson's case again in light
of that particular decision. It didn't say, you know, this
is a junkt science. It didn't say there are a
lot of things wrong with us. It just said, since
we've made that decision, we want you to look at
this again in line of that. And so now you know,
things will happen on the trial court level in Anderson County,
and whether Robertson gets a new trial at the end
(15:53):
of it is sort of tbd.
Speaker 1 (15:55):
But right, So they didn't necessarily order a new trial.
They said review on this sort of precedent we set
in a previous case, exactly.
Speaker 3 (16:04):
And at this point, so currently, right, the Attorney General's
office has sort of stepped in to Anderson County to say,
like they're taking the role of Anderson County and defending this.
And as we know, Attorney General Ki Paxton has been very,
very outspoken about the idea that Robertson should be executed
for this. Yes, that's right.
Speaker 1 (16:25):
So let's talk a little bit about the argument being
made by people like Attorney General Kim Paxton that you know,
Mitch Little Estate representative, another person really pushing this case
that essentially, you know, people portraying people in the media,
people who are in the legislature who are trying to
(16:45):
defend him, lawyers are trying to portray this as some
kind of open and shut case when the evidence actually
points to a clear you know, guilt of Roberson, right, like.
Speaker 2 (16:59):
A murder would walk free.
Speaker 1 (17:00):
Yeah. Yeah, And I wanted to see if you can
help me sort of think through what some of the cases.
And I'll warn here, you know, we might go into
the realm of fairly graphic details here so of you know,
a very young child, So people don't want to listen
to this. You might want to skip ahead or wait,
(17:23):
you know, move on to next week to San Antonio. Yeah,
but essentially what we have here is is, you know,
I think the biggest one pointing to well, actually, let
me let me just read from the descent in the
Quarter of Criminal Appeals case, it says the morning after
he being Robertson brought her being Nicki to the emergency room,
(17:43):
where she was found to be limp lifeless, blue and bruised.
Her pupils were fixed and dilated in the back of
her head, exhibited a boggy, mushy bump. Applicants gave inconsistent
accounts for Nicky's condition, centering around a possible fall from
a bed, an explanation the the medical professionals found at
odds with her condition. She died days later after life
(18:05):
support had been withdrawn. You know, the argument that folks
are making is essentially, when you hear that kind of injuries,
this is not the case of you know, medicine making
someone sick and eventually dying or any of these types
of things. Is that he clearly abused her or bruises
all over her leading to her death. What do Robson's
(18:30):
supporters have to say about that case.
Speaker 4 (18:34):
I think they have answers to all those points, and
that's sort of the whole. I think people try to
or trying to make conclusions where that's not what anyone's
asking the court at this or was asking the court
to do before he was scheduled to execute. I mean,
I think they'll say so. Something that advocates for moving
(18:56):
ahead with the execution often point to, I think is
her autopsy report, in addition to some you know, images
of her and those exact descriptions that you mentioned Matthew.
I think his lawyers would say the autopsy itself was
really flawed. The practitioner who conducted it was told before
she conducted the autopsy of Nikki that Robertson had been
(19:19):
arrested on murder charges, which today I think people have
argued would taint the autopsy. I think his lawyers have
also noted that she had a blunt disorder that you know,
was caused by her all the other illnesses that she
had that led her to bruise very easily and led
to those marks that people point to that were reported
(19:40):
in the autopsy. People also suggest that she had clear
signs of blunt force trauma and that's clearly what she
died from, was somebody hitting her. But in the trial record,
the doctors who attended to her testified that blunt force
trauma is indistinguishable from shaking, and so those are sort
(20:00):
of kind of conflated descriptors in her record that people
I think are seizing on and drawing conclusions from. I mean,
they're just like a bunch of things like that. It's
not an easy like if the appeals that his lawyers
have brought are just it's just pages and pages of
(20:23):
medical evaluations, very technical diagnoses and conclusions that they draw
from all these different parts of her condition, and so
I don't think it's so clear cut.
Speaker 1 (20:35):
Yeah. I mean, one of the things I'm going to
quote yourself to you. You, I'm going to quote you
to yourself basically, you know, the argument around the medical examiners.
I thought was a really interesting when the medical report,
you know, again describing multiple sites of trauma, bruises all over,
you mentioned the blood condition that might have potentially contributed
to that. You know, one of the things this team
(20:57):
points to is now I'm quoting you. The treating for
ysicians who first saw Nikki did not make note of
multiple sites of physical trauma upon her arrival at the hospital,
since she wasn't admitted with those injuries, and especially because
she had that disorder, It's clear they came from two days.
It's clear that the bruises came from two days of
(21:17):
being picked up, moved, and manipulated during emergency procedures. This
is your You're in that. I'm quoting you, quoting a
group of lawmakers essentially saying that so essentially this idea
of just like what may have happened after she was
rushed to the hospital he possibly is now being blamed for, right,
And let me ask I mean, I know some of
the judges have said in this most recent time, but
(21:39):
also throughout sort of like they're sort of saying, like,
this is not a shaken baby case.
Speaker 3 (21:44):
Like the question whether or not shaken baby syndrome is
real or not, or whether they try it all that like,
is not that like there is other evidence that he
brought about her death. That and you know, some of
the one of the jurors testified saying like, well, we
convicted on the premise of shaking baby.
Speaker 2 (22:02):
I mean, where does that stand now? Like it is
still a shaken baby case?
Speaker 1 (22:07):
Right?
Speaker 4 (22:08):
That is also now in question, and that will be
part of what the trial court has to decide of
how central was her shaken baby diagnosis to Roberson's conviction.
I think we saw in some of the dissenting opinions
from the CCA, I think maybe two judges said that
they did not think this was a shaking baby case,
(22:29):
like you sail or that you know, there was a
blunt force trauma and clear signs that he had brought
about her death not solely through shaking. I think you
will hear his lawyers say that that is a absurd
case to make, and their references to shaking and shaking
(22:50):
baby syndrome dozens and dozens and dozens times throughout the
trial record. Like you said, a juror came out and
said that this was solely what they convicted him based on,
and that she would change her decision today if she
had been presented with all these other facts. But that
will be something that you know, the court will have
to decide.
Speaker 1 (23:08):
Yeah, I mean, this is a situation where even the
jurors are split, right, because after the decision from the
Court of Criminal Appeals this week, the foreman of the
jury came out and told a local television station. He
said that the jury did not convict Riverson based on
sha shaken baby, shaken baby syndrome, that there was evident
of blunt force trauma. He kind of quoted the nurses
(23:30):
testifying at trial saying that you know, she was the
bluest child one nurse I had ever seen. Her face
was battered and bloodied. We already kind of talked about
some of that background there, but then of course you
then quote Terry Compton. Everything that was presented to us
was all about shaking baby syndrome. That was what our
decision was based on. Nothing else was ever mentioned or
(23:52):
presented to us to consider, So there's split there. Obviously,
you need a unanimous jury in order to convict someone
to death, So, you know, could you possibly make the
argument that at least wonder saying that in that changes thing,
which which sort of leads me to my next question
of what exactly are we supposed to be evaluating here?
(24:12):
I mean, are we supposed to just you know, the courts.
When I say we, I really mean the courts here?
Are the courts supposed to be deciding he's guilty or
he's not guilty. Are they supposed to be evaluating is
he guilty beyond a reasonable doubt? Or are they supposed
to be evaluating, you know, despite whether they think he's
guilty or not guilty, that he deserves a new trial,
(24:34):
or can they decide any of those things?
Speaker 4 (24:37):
Right now? I think the rieman is far more limited.
It's if under in light of the Andrew Urke decision
out of Dallas County, that you know, there is sufficient
doubt about how Robertson's trial went down to you know,
recommends that he gets a new trial, and then ultimately
the CCA will have to decide whether or not that
should happen. His lawyers are arguing for his ac actual innocence,
(25:00):
or have been arguing for his actual innocence, which is
a much higher bar to clear for the defense than
just that he's not guilty. So they are suggesting that
they have evidence and that they know that he is
actually innocent and can prove that in court. I think
maybe some of his lawmaker supporters are taking a kind
(25:22):
of a more conservative approach and saying that there is
just enough doubt about the fairness of his trial and
that he was afforded the proper due process, and we
just shouldn't be executing somebody if there is that doubt
whether or not we think he is actually innocent. So
there is a real range of routes that his supporters
(25:44):
are pursuing, and.
Speaker 3 (25:45):
I mean, I think that is what so many death
penalty cases come down to, and like they're not usually
done in this like this level of scrutiny, even when
we have had like high profile cases like Melissa Lucy
on these other cases that are very high profile, very rarely,
I think is the evidence played out so publicly and like,
but often it does come down to more than just
(26:07):
like did they do it or not right?
Speaker 2 (26:10):
So many of these, like innocence cases, are.
Speaker 3 (26:13):
Did we like follow all of the proceed like it
was all of this handled correctly? Because the bar is
so I mean, you're putting someone to death, Like I
think the bar for many criminal cases is like, did we,
you know, give this person due process? But when the
bar for this is so high, like I think they
often succeed on these, not on the merits, but on
the you know, this person was not given due process totally.
Speaker 1 (26:36):
It's interesting to just hear this conversation about shaking baby syndrome.
We actually talked on last week's podcast about how I
used to cover criminal trials and I covered a shaken
baby case in two thousand and nine. I went back
just before the show and googled try to figure out
when it was, and in that case, there was I
(26:59):
think the the medical consensus on shake and baby syndrome
had not reached maybe what it is now, but there
were people who were casting doubt on it. And I
have this memory of sitting there in that trial and thinking,
you know, you sort of maybe some people at least
(27:22):
I'll speak for myself, sit in these trials and they think,
you know, the prosecution has no reason to push a
certain narrative, but the defense is going to find, you know,
has clear motivation to try to make a case about
you know, this isn't real. And so they brought in
a witness who you know, was talking about how the
(27:42):
science behind shaken baby syndrome was not quite where it
is now. But it's hard to not look at that
skeptically when you're thinking, Okay, they're going to do anything
to try to save their client from this case. It's
interesting the person actually was found not guilty in that case,
but it does like make me think about the junk
law which was passed four years later, and how that
(28:03):
might cause you to want to reconsider some of those cases.
You know, if you can demonstrate the change medical consensus,
it might really mean something in the eyes of a jury,
which is.
Speaker 3 (28:19):
I think why this whole thing is so interesting because
I think there are people who are just very very
opposed to, you know, the death penalty in general, and
like are like work specifically on death penalty cases, and
we might think of them as sort of being one
like political leaning. It's interesting about this case is it's
like it's sort of, like you said, cross cutting across
(28:40):
political leanings, and it's not Ben is clearcut of like
just the defense versus the prosecute, you know what I mean,
Like it's gotten very very I mean, I think a
lot of lawmakers who are very supportive of the death
penalty generally are very opposed in this case.
Speaker 1 (28:58):
Yes, well, I mean Brian Harrison, you know, among if
not the most conservative member of the Texas House, teaming
up with Joe Moody, a Democrat, teaming up with Jeff Leech,
a Republican, but who does not get along very well
with Brian Harrison at all. I mean, if you follow
them on Twitter, they post shots at each other at times.
(29:22):
And then on the other side you have you know,
Ken Paxton and Mitch Little, also very conservative folks. But
you know, there was a press conference right where a
big Republican donor, Doug Deeson, came out in supportive Roberson,
and so those kind of mixed alliances have been really
interesting to watch. I mean, I also I'm curious, as
(29:44):
the law and politics reporter Eleanor, you know, I mean,
what do you think about just the way this case
has been politicized, and I mean there seemed to be
you know, we had a story about this last a
lot of concerns around just how so many more court
(30:04):
cases are being played out in the court of public
opinion as opposed to the weighan of evidence and everything
that goes on there.
Speaker 4 (30:11):
Yeah.
Speaker 3 (30:11):
Absolutely, it's been so interesting. I remember like the after
that subpoena when we all were like, like the editors
and the readers were like, what does that mean? And
we're like, oh, I don't know. I don't think anyone knows.
And we were like calling judges who were like, yeah,
we don't know either. So it's really, I mean, unprecedented
in so many ways. But I do think the pressure
on the courts around this, I think in some ways
(30:33):
is unprecedented.
Speaker 2 (30:34):
But I also think in a.
Speaker 3 (30:35):
Lot of ways, like I think they feel this degree
of pressure on a lot of death penalty cases. This
is obviously getting even more attention, but like there have
been very very high profile and you know, I think
they probably would say, like they take all the death
penalty cases very seriously, but we're seeing just a lot
of I mean, the Court of Criminal Appeals itself is
you know, after the last election, became much more aligned
(31:00):
with Attorney General Ken Paxton, who helped unseat three incumbents, and.
Speaker 1 (31:05):
Because he disagreed with the ring that they issued.
Speaker 3 (31:07):
Yeah, he disagreed with their ruling on a you know,
on a voting rights case and he or election fraud case,
and he, you know, has been very overt about like
being willing to do that again and going to continue
to do that. Two current incumbents are not going to
run for reelection again. You know, we saw with the
Texas Supreme Court recently with when the quorum break happened,
(31:29):
and Paxton and Abbott both went to the text Supreme
Court saying like remove these people from their seats, and
Michael Quinn Sullivan, you know, sort of a conservative commentator saying,
you know, to the Texasupreme Court on Twitter, like Republican
primary voters are watching what you do on this.
Speaker 2 (31:48):
So a lot of very overt politicization of the courts.
Speaker 3 (31:51):
I will say, like, at least from so far from
an outsider's perspective, you know, there's not a ton of
evidence that the courts are bowing to that right. I mean,
the tex Supreme Court did not expel those House members
yet at least we like don't.
Speaker 2 (32:02):
Have a ruling the Court Criminal Appeals. Did you know.
Speaker 3 (32:08):
We've seen this in other rulings, but also in this
ruling sort of, you know, it seems like remain somewhat
consistent with their previous rulings on this, sou But I
have to imagine they're feeling that pressure.
Speaker 1 (32:18):
Yeah, I mean, and I would No one has said
this to me, but as I watched the defense on
this and having press conferences with a big Republican donor,
or having people like Brian Harrison and Jeff Leach come
out in favor of them, you know, I've got to
think that one of the reasons they're using those voices
is to try to send a signal to the Court
of Criminal Appeals that says, you know, you will get
(32:40):
some support from your right word flank if you, you know,
make what we feel is the right decision here, you
know what I mean?
Speaker 3 (32:47):
Doug Deson said exactly, Yeah, yeah.
Speaker 1 (32:49):
And I mean, you know, the thing about being a
judge on the Court of Criminal Appeals is nobody knows
who the hell you are. Right. I don't mean that
in a derogatory manner, I see, that's more derogatory about
the voters than it is about the judges. But just
like people don't know the names of the nine statewide
elected Quarter of Criminal Appeals, you also have to elect
nine Supreme Court members, and you have to elect your
(33:11):
local judges, and you have to elect your Court of
Appeals judges and your state representative and all these different
other things. Like it's just really hard to keep track
of that kind of thing. So the risk there is
one little case that people can glom onto could bring
you down, and you have to think about that. It's
I think it's probably impossible not to have that way
(33:32):
on the back of your head, even if you're going
to do the right thing and try to block it
out and make that you know, go away and make
the decision based on the law and the facts. But
maybe what they're trying to say here is exactly right,
Like it's not just this is not a case where
the hardline Republican primary voters is unanimous in thinking this
(33:56):
guy needs to be executed right now.
Speaker 3 (33:58):
Yeah, I think can Pack has really posed the only
like meaningful threat to these like these judges who are
elected largely Like if you're in a coumbany, you can
get reelected.
Speaker 1 (34:09):
Based on your name basically.
Speaker 4 (34:10):
Yeah.
Speaker 1 (34:10):
Yeah.
Speaker 3 (34:11):
There was I mean a huge scandal probably twenty years
ago with a court criminal Appeals judge who was really
in the spotlight after she refused to let a lawyer
file an appeal like they were like twenty minutes late
and she locked the door, and it was this huge
national news story and she was like condemned from the
you know, fight everyone.
Speaker 1 (34:31):
And this was on a death row case.
Speaker 3 (34:32):
On a death row case, and he ended up being
executed despite because the lawyer was a few minutes late
to file the filing and she locked the door and
wouldn't let him file it.
Speaker 2 (34:41):
I mean, it was national news.
Speaker 3 (34:43):
And still she served another twenty years on the court,
re elected every year until she ran into the brick
wall that is Ken Paxton and was unseated last term. So,
you know, I think for a long time they haven't
really had to contend with this level of political pressure.
It is probably easier for them to hear from a
major Republican donor. You know, if they try to do
(35:03):
that to you on this, we're here to back you.
Speaker 1 (35:06):
Yeah. Yeah, So Kayla, where do we go from here?
Speaker 4 (35:13):
Well, it's sort of unclear. The Court of Criminal Appeals
and its order didn't lay out a timeline for the
Anderson County Court to act. This could very well be
another year's long process. When the CCA stayed his execution
in twenty sixteen, basically did a very similar thing that
they did on Thursday. They stayed in twenty sixteen. I
(35:33):
think COVID had something to do with it, But there
wasn't an evidentiary hearing until twenty twenty one to twenty
twenty one ish, four or five years later, and his
execution wasn't set again until eight years after that initial stay,
So it could be a really long process or not.
I don't know. Maybe how public it has become will
(35:56):
change the timeline. Another outstanding question is whether the Attorney
General is off is going to continue representing the state
in this part of the case. Again, obviously, con Packsin's
been very vocal about what he thinks and his office
is now, you know, representing the state, So it's hard
to imagine that if they continue doing that that they
will concede any of these points. So that is kind
(36:18):
of all still up in the air. And I think
all of the claims that Roberson's attorneys have been making
on his behalf, even though some of them were dismissed
by the CCA this latest round. I think what's included
in them, the facts of those or the claims made
in them, are still going to be relevant as they
make his case this time around in Anderson County.
Speaker 1 (36:36):
Yeah. I mean it does seem like maybe we're falling
into a pattern here though, where the Court of Criminal
Appeals sends it back and the court on the ground,
the district court does not seem very interested in changing,
you know, the result of this, and then it comes
back to this. You know what's going to break that cycle?
Either way?
Speaker 3 (36:53):
I think we'll have to see, well, potentially some new
faces on the Court of Criminal Appeals.
Speaker 2 (36:57):
Yeah, if I got two people stepping down, Yeah.
Speaker 1 (37:00):
That could be Okay. Well, that is all we have
for today. Thank you to our producers, Rob and Chris,
and thank you Kyla. We will talk to you all
next week.
Hello, and welcome to the Texas Tribune trip cast for Tuesday,
October fourteenth. I am Matthew Watkins, editor in chief of
the Texas Tribune, joined as usual by Politics and Justice
reporter Eleanor Klebanoff.
Speaker 2 (00:30):
Hell, still not my title, Law and.
Speaker 1 (00:33):
Politics, Law in politics, politics, justice.
Speaker 3 (00:36):
Politics, the you know, law and order and CSI and
justice politics reporter.
Speaker 1 (00:42):
Yeah. I will get it at some point, or maybe
I won't. Yeah, maybe not. Keeps working. How are you doing.
Speaker 2 (00:48):
I'm doing well. And there's a real full chill in
the air.
Speaker 1 (00:51):
Oh yeah, low nineties.
Speaker 2 (00:52):
Yeah, it's amazing.
Speaker 1 (00:54):
Yeah, I really enjoyed that at acl Fest.
Speaker 2 (00:57):
Yeah, were you at a cl I was, and.
Speaker 1 (01:02):
I continue to be too old for them. I only
went on Saturday with my daughter and my wife. Daughter
very excited to see Sabrina Carpenter. I went and saw
the Strokes because, as previously mentioned, I'm old, and yeah, yes,
it was a great time.
Speaker 3 (01:21):
You just threw your daughter into the Sabrina crowd and
we're like, we'll meet back at A at the end.
Speaker 1 (01:26):
Yeah. Well, so basically, my daughter had a soccer game
at eight am in San Antonio, so we had to
wake up at six and driver to San Antonio and
then we drove back and then we got to the
festival at around two two thirty and then got ended
up getting home around like midnight. So it was an
incredibly long day and my daughter was like, this is
(01:47):
too much. So they like actually like stayed back and
worked in the mix. I was watching the Strokes and
also watching the texting and football game on my phone.
Speaker 3 (01:57):
Yes, fair, fair, like whole is like the first part
so beautiful, like getting to share a music festival with
your child.
Speaker 1 (02:04):
Yeah.
Speaker 3 (02:05):
The setup of after driving her at six am to
a soccer game is like a real mixed bag on parenthood.
Speaker 1 (02:13):
Yeah you know. And then she was like convinced that
she had lung cancer because of all the people who
were smoking. And I was like, actually, that pain you
feel on your legs is actually all the dust.
Speaker 3 (02:22):
Right, yeah, you're like you can smoke a ton, don't
even more like honestly, the smoking's not the profitable Yeah.
Speaker 1 (02:27):
Yeah, so anyway, nice.
Speaker 3 (02:30):
I did not go to a cl this year, but
most I was most would have gone to see Tea Pain.
Speaker 1 (02:35):
So I went to the first ten ACL fests and
then I retired, So I was like, this is too
it's too much, and then I went enough since then
to forget how terrible it is.
Speaker 2 (02:47):
Yeah, every time it's a new Yeah, Yeah, it was.
Speaker 1 (02:50):
Actually pretty fun. Japanese Breakfast actually was the best show
with that band. Yeah, really great.
Speaker 2 (02:55):
Yeah.
Speaker 4 (02:56):
Did you go to IC I did. I had a
very chaotic experience. I did not have tickets, so me
and my friends got their Sunday at four pm and
I held up a sign that said need four wristbands.
Speaker 2 (03:11):
Had they were quo.
Speaker 4 (03:12):
The scalpers were quoting us like four hundred dollars for
like five hours left of the vessel, So we posted
up at lose and I held up my sign. Eventually
did manage to get too, so I went in and
saw two DJs.
Speaker 1 (03:27):
Interesting.
Speaker 2 (03:28):
I will say I've said it before, I'll say it again. Kala,
We're very different people.
Speaker 1 (03:33):
That voice you heard was indeed Kala Glow are politics reporter. Yes,
I know.
Speaker 2 (03:39):
Kayla's more straightforward, yeah, fancy.
Speaker 1 (03:43):
But this week she is here to talk to us
about Robert Roberson, who was at least coming into this
week when we scheduled this podcast scheduled to be put
to death by the State of Texas for the two
thousand and three conviction for killing his daughter. His case,
as you may know, has become a high profile cause
(04:03):
for death PILNY opponents who believe Texas might be trying
to execute an innocent man. But on Thursday, the state's
highest criminal court delayed the execution for the second time
in less than a year. It was a second time
in less than a year that Robson was essentially days
away from being executed and a court stepped in to
block it all. Through this whole process, really, this whole
(04:25):
past year, some of Texas's highest profile politicians have been
fighting over the Robson case, in a fight that sort
of breaks down under sort of non ideological lines. It's
been sort of an interesting mix of lawmakers on both
sides of the issue. But I will speak for myself.
I won't speak for you Eleanor, but at least for myself.
(04:45):
As this fight has been going on, it's been a
bit challenging to sort of make sense of the facts.
I would say both sides seem very certain and confident
in their position as to whether Robert Roberson did this. So, Kayla,
you are here to break it down for us. Thank
you for joining us on the podcast.
Speaker 4 (05:04):
Thanks for having me.
Speaker 1 (05:05):
Even after an eventful ACL festival. So let's just start
with the basics here. Can you tell us about the
crime that Roverson is accused of.
Speaker 4 (05:15):
Yes, he is accused and was convicted of murdering his
two year old daughter, Nicki. He was convicted in two
thousand and three. She died in two thousand and two
and at the time when he brought her to the hospital,
the nurses and doctors he had said that he had
woken to find her fallen from the bed and she
was unresponsive, but he didn't know what was going on.
(05:38):
She had been really sick in the weeks leading up
to that, but at the hospital, the doctors and nurses
didn't think that, you know, a fall could have caused this,
and so they saw the signs that at the time
told them to diagnose her with shaken baby syndrome, which
is basically when a child or a baby is shaken
so violently that they are really injured or die. So
that is what he was convicted of in two thousand
(06:00):
and three. He has maintained his innocence over the past
twenty plus years on death row. But you know, even
at his trial, his defense layer didn't pursue that innocence claim.
Didn't you know, defend him as if believing that he
were innocent. And so now you know, medical consensus has evolved.
His lawyers have presented evidence they say debunks that Jake
(06:24):
and baby diagnosis and that there was no crime.
Speaker 1 (06:27):
Okay, let's let's get into that. Now, why do people
believe Why do the people who believe he's innocent believe
he is innocent?
Speaker 2 (06:38):
There is a lot.
Speaker 4 (06:39):
So in the midst of all this, Texas in twenty
thirteen passes a pretty groundbreaking law, the Junk Science Law.
Texas was the first in the nation to do. A
bunch of states have followed suit, and that provides for
second looks in cases where the conviction rested on science
that has since been discredited and recognizes that while the
(07:00):
law is final, and you know, convictions are final, science
and evidence evolves, like you think of things like my
bite mark hypotheses. You know, people used to think that
you can match someone's teeth up to a bitemark, and
that is just not like held up in science anymore.
So we pass this law in twenty thirteen that Roberson
supporters think he is the poster child for to receive
(07:23):
relief under and so a few things have happened since
then as well. The medical guidance doesn't say to diagnose
shake and baby syndrome when the three symptoms that it
previously said to do it appear for it says you
have to consider other factors before concluding abuse. His lawyers
(07:44):
argue that things like sicknesses, accidents, those can call cause
these three symptoms as well. It's bleeding behind the retina,
some things in the brain.
Speaker 2 (07:56):
Swelling, yeah, bleeding.
Speaker 4 (08:00):
And so the medical consensus around how to diagnose shake
and baby syndrome. It's still real, you know, but baby
can still be really injured if they're violently shaken. Today
it's not called chicken baby syndrome anymore, but how to
diagnosis that guidance has changed. And his lawyers also point
to evidence about Nikki that wasn't considered at trial as closely,
(08:22):
that she was, you know, really sick in the days
leading up to it, that she was prescribed medication that's
no longer given to children her age, and they also
point to flaws with how the autopsy was conducted, things
with how Niki was handled at the hospital. So there
are just a bunch of different, evolving, shifting things that
(08:42):
have led people to say that it's not totally clear
that he shook his baby to death and should be
executed for it.
Speaker 3 (08:49):
Right, there's sort of like correct, been wrong, right, but
like two separate things here, one of which is like
the actual facts of his specific case. And also, as
you're saying this like consensus on shaking baby syndrome, that
the junk science law doesn't say, oh, if you were
conviction on something that has since been thrown out as
like you can't possibly have done it. It just says
(09:10):
like you should get a second look at your case
and we'll like reassess it on modern medicine, And a
big part of that is like the idea that what
we now know is doctors used to be told, like
pediatricians especially like if you see or like if you
see these three symptoms the triad, like assume it's shaken
baby syndrome and proceed from there, which sort of his
(09:33):
lawyers of art you sort of like taint the whole
thing from the jump. We now know that a lot
of things can cause that, and that you know, often
to shake a baby so hard to cause them to die,
you might see other symptoms too, like a broken neck.
Speaker 2 (09:45):
Sure, exactly, Yeah, yeah.
Speaker 1 (09:48):
It's it's well, actually, I want to go back a
little bit and more into the arguments on both sides here,
but let's kind of continue with our history lesson first. Right,
So he was is scheduled to be executed last year,
and two state lawmakers really took up his cause. Jeff Leech,
(10:09):
a Republican from the Colin County area north of Dallas,
and Joe Moody, a Democrat from the Alpaso area, tell
us a little bit about the dramatic actions they took
to block the execution the first time here last year.
Speaker 4 (10:28):
Yeah, well, I just want to note this was not
last year, was not the first time his execution was blocked.
The Court of Criminal Appeals in twenty sixteen actually stayed
his execution using the junk science law, saying that it
provided a second look. So his case went back to
trial court that had an evidentiure hearing. But the court
in Anderson County and the prosecutor, you know, maintained that
(10:49):
the evidence was still convincing of his guilt, and so
that's what they recommended to the CCA, and the CCA
agreed Robertson's lawyer thinks that, you know, they never really
meaningfully engaged with all the evidence she brought up, but
that sort of covers the span between twenty sixteen up
until twenty twenty three. Is when his execution data set
for twenty three four last year, which is when all
(11:11):
these lawmakers get involved and sort of set off this broader,
more dramatic saga, political saga. I think it was in
the month before his execution was set to take place,
more than half I think it was something like two
thirds of the Texas House sign onto a letter urging clemency.
(11:31):
A few people have since walked back their support, like
Tom wulliverson Briscoecine. But these lawmakers, you know, they were
suggesting that maybe there was sufficient doubt to put a
pause on the whole thing. The House Committee on Criminal Jurisprudence,
which at the time Joe Moody chaired, and I believe
Jeff Leach was the vice chair at the time, they
(11:53):
held a couple of hearings before the execution was set
to happen, and then the most dramatic moment happened the
day before Roberson was set to be executed. They brought
in a bunch of experts to testify as an all
day hearing. Sometime in the middle of the day, the
decision came from the Board of Pardons and Paroles that
they were going to reject his application for clemency, which
meant that only Governor Greg Abbott had the power at
(12:16):
the time to issue a thirty day stay, which he
did not do. At the end of this long, all
day hearing, the committee, I believe it was a motion
by Representative Brian Harrison, who's a Republican from Midlothian.
Speaker 2 (12:29):
He raises this motion to.
Speaker 4 (12:31):
Subpoena Robert Robertson, instructing him to come testify before the
committee a few days after he was scheduled to die.
So that sets off a whole whirlwinds the next day,
and eventually the Texas Supreme Court steps in saying that
this is a separation of powers issue between the executive
(12:53):
and legislative branches of government. So the subpoena went out,
or the executive branch's authority to execute him went out,
and that leads to his execution being temporarily stayed, and
eventually the Supreme Court says the lawmakers stepped a little
bit too far, and Robert's execution was put back on
the calendar this year and until last week was set
(13:15):
to happen in two days from Luma recording and.
Speaker 1 (13:18):
The idea back then there was essentially, you can't execute
someone who we're asking to come testify before us Abbot.
Speaker 3 (13:25):
Where you can't testify if you've been executed, so right, right, right.
Speaker 1 (13:29):
You can't. You can't execute We need him to, yeah,
get in, so so don't don't And Abbott and others
basically essentially make the case that this is sort of
a they are taking away the power of the governor
to kind of make decisions on these, when it's essentially the.
Speaker 3 (13:47):
Right anyone could subpoena anyone then and say, you know,
we're never going to execute anybody.
Speaker 1 (13:52):
Yeah, okay. So then the decision from the State Criminal
Court of Appeals, we should mention a nine member court
all republics, all elected statewide, that focus on basically the
top criminal court in the state, issues a decision on Thursday.
Tell us what that decision said.
Speaker 4 (14:12):
That decision it so, first of all, it didn't roll
on the merits of Robertson's claims that you know, this
was junk science, or that Nikki.
Speaker 2 (14:21):
Died from other causes.
Speaker 4 (14:23):
In fact, dismissed a bunch of his appeals claiming judicial
misconduct and other things, but it told the trial court
in Anderson County to look again at Robert's case in
light of a decision the criminal court made last year.
So in the midst of all the subpoenas stuff going on,
and the Court of Criminal Appeals overturned the conviction of
(14:47):
a man out of Dallas County who was convicted based
on a shaken baby syndrome diagnosis. In that decision, the
Court of Criminal Appeals, you know, acknowledged that these science
and medical consensus around shaking baby syndrome had evolved since
that conviction, and so they overturned that guy's connection. His
name was Andrew work Is, Andrew Worke, and Roberts attorneys
(15:10):
had been, you know, citing that case as if you're
going to acknowledge changing science in Andrew Worke's case, we
think it should apply here as well. His attorney. Robert's attorney,
Gretchen Schwen called the cases materially indistinguishable, and so that
had been a point in her filings to the court
since then. And so on Thursday, the CCA told the
(15:32):
trial court to look at Robertson's case again in light
of that particular decision. It didn't say, you know, this
is a junkt science. It didn't say there are a
lot of things wrong with us. It just said, since
we've made that decision, we want you to look at
this again in line of that. And so now you know,
things will happen on the trial court level in Anderson County,
and whether Robertson gets a new trial at the end
(15:53):
of it is sort of tbd.
Speaker 1 (15:55):
But right, So they didn't necessarily order a new trial.
They said review on this sort of precedent we set
in a previous case, exactly.
Speaker 3 (16:04):
And at this point, so currently, right, the Attorney General's
office has sort of stepped in to Anderson County to say,
like they're taking the role of Anderson County and defending this.
And as we know, Attorney General Ki Paxton has been very,
very outspoken about the idea that Robertson should be executed
for this. Yes, that's right.
Speaker 1 (16:25):
So let's talk a little bit about the argument being
made by people like Attorney General Kim Paxton that you know,
Mitch Little Estate representative, another person really pushing this case
that essentially, you know, people portraying people in the media,
people who are in the legislature who are trying to
(16:45):
defend him, lawyers are trying to portray this as some
kind of open and shut case when the evidence actually
points to a clear you know, guilt of Roberson, right, like.
Speaker 2 (16:59):
A murder would walk free.
Speaker 1 (17:00):
Yeah. Yeah, And I wanted to see if you can
help me sort of think through what some of the cases.
And I'll warn here, you know, we might go into
the realm of fairly graphic details here so of you know,
a very young child, So people don't want to listen
to this. You might want to skip ahead or wait,
(17:23):
you know, move on to next week to San Antonio. Yeah,
but essentially what we have here is is, you know,
I think the biggest one pointing to well, actually, let
me let me just read from the descent in the
Quarter of Criminal Appeals case, it says the morning after
he being Robertson brought her being Nicki to the emergency room,
(17:43):
where she was found to be limp lifeless, blue and bruised.
Her pupils were fixed and dilated in the back of
her head, exhibited a boggy, mushy bump. Applicants gave inconsistent
accounts for Nicky's condition, centering around a possible fall from
a bed, an explanation the the medical professionals found at
odds with her condition. She died days later after life
(18:05):
support had been withdrawn. You know, the argument that folks
are making is essentially, when you hear that kind of injuries,
this is not the case of you know, medicine making
someone sick and eventually dying or any of these types
of things. Is that he clearly abused her or bruises
all over her leading to her death. What do Robson's
(18:30):
supporters have to say about that case.
Speaker 4 (18:34):
I think they have answers to all those points, and
that's sort of the whole. I think people try to
or trying to make conclusions where that's not what anyone's
asking the court at this or was asking the court
to do before he was scheduled to execute. I mean,
I think they'll say so. Something that advocates for moving
(18:56):
ahead with the execution often point to, I think is
her autopsy report, in addition to some you know, images
of her and those exact descriptions that you mentioned Matthew.
I think his lawyers would say the autopsy itself was
really flawed. The practitioner who conducted it was told before
she conducted the autopsy of Nikki that Robertson had been
(19:19):
arrested on murder charges, which today I think people have
argued would taint the autopsy. I think his lawyers have
also noted that she had a blunt disorder that you know,
was caused by her all the other illnesses that she
had that led her to bruise very easily and led
to those marks that people point to that were reported
(19:40):
in the autopsy. People also suggest that she had clear
signs of blunt force trauma and that's clearly what she
died from, was somebody hitting her. But in the trial record,
the doctors who attended to her testified that blunt force
trauma is indistinguishable from shaking, and so those are sort
(20:00):
of kind of conflated descriptors in her record that people
I think are seizing on and drawing conclusions from. I mean,
they're just like a bunch of things like that. It's
not an easy like if the appeals that his lawyers
have brought are just it's just pages and pages of
(20:23):
medical evaluations, very technical diagnoses and conclusions that they draw
from all these different parts of her condition, and so
I don't think it's so clear cut.
Speaker 1 (20:35):
Yeah. I mean, one of the things I'm going to
quote yourself to you. You, I'm going to quote you
to yourself basically, you know, the argument around the medical examiners.
I thought was a really interesting when the medical report,
you know, again describing multiple sites of trauma, bruises all over,
you mentioned the blood condition that might have potentially contributed
to that. You know, one of the things this team
(20:57):
points to is now I'm quoting you. The treating for
ysicians who first saw Nikki did not make note of
multiple sites of physical trauma upon her arrival at the hospital,
since she wasn't admitted with those injuries, and especially because
she had that disorder, It's clear they came from two days.
It's clear that the bruises came from two days of
(21:17):
being picked up, moved, and manipulated during emergency procedures. This
is your You're in that. I'm quoting you, quoting a
group of lawmakers essentially saying that so essentially this idea
of just like what may have happened after she was
rushed to the hospital he possibly is now being blamed for, right,
And let me ask I mean, I know some of
the judges have said in this most recent time, but
(21:39):
also throughout sort of like they're sort of saying, like,
this is not a shaken baby case.
Speaker 3 (21:44):
Like the question whether or not shaken baby syndrome is
real or not, or whether they try it all that like,
is not that like there is other evidence that he
brought about her death. That and you know, some of
the one of the jurors testified saying like, well, we
convicted on the premise of shaking baby.
Speaker 2 (22:02):
I mean, where does that stand now? Like it is
still a shaken baby case?
Speaker 1 (22:07):
Right?
Speaker 4 (22:08):
That is also now in question, and that will be
part of what the trial court has to decide of
how central was her shaken baby diagnosis to Roberson's conviction.
I think we saw in some of the dissenting opinions
from the CCA, I think maybe two judges said that
they did not think this was a shaking baby case,
(22:29):
like you sail or that you know, there was a
blunt force trauma and clear signs that he had brought
about her death not solely through shaking. I think you
will hear his lawyers say that that is a absurd
case to make, and their references to shaking and shaking
(22:50):
baby syndrome dozens and dozens and dozens times throughout the
trial record. Like you said, a juror came out and
said that this was solely what they convicted him based on,
and that she would change her decision today if she
had been presented with all these other facts. But that
will be something that you know, the court will have
to decide.
Speaker 1 (23:08):
Yeah, I mean, this is a situation where even the
jurors are split, right, because after the decision from the
Court of Criminal Appeals this week, the foreman of the
jury came out and told a local television station. He
said that the jury did not convict Riverson based on
sha shaken baby, shaken baby syndrome, that there was evident
of blunt force trauma. He kind of quoted the nurses
(23:30):
testifying at trial saying that you know, she was the
bluest child one nurse I had ever seen. Her face
was battered and bloodied. We already kind of talked about
some of that background there, but then of course you
then quote Terry Compton. Everything that was presented to us
was all about shaking baby syndrome. That was what our
decision was based on. Nothing else was ever mentioned or
(23:52):
presented to us to consider, So there's split there. Obviously,
you need a unanimous jury in order to convict someone
to death, So, you know, could you possibly make the
argument that at least wonder saying that in that changes thing,
which which sort of leads me to my next question
of what exactly are we supposed to be evaluating here?
(24:12):
I mean, are we supposed to just you know, the courts.
When I say we, I really mean the courts here?
Are the courts supposed to be deciding he's guilty or
he's not guilty. Are they supposed to be evaluating is
he guilty beyond a reasonable doubt? Or are they supposed
to be evaluating, you know, despite whether they think he's
guilty or not guilty, that he deserves a new trial,
(24:34):
or can they decide any of those things?
Speaker 4 (24:37):
Right now? I think the rieman is far more limited.
It's if under in light of the Andrew Urke decision
out of Dallas County, that you know, there is sufficient
doubt about how Robertson's trial went down to you know,
recommends that he gets a new trial, and then ultimately
the CCA will have to decide whether or not that
should happen. His lawyers are arguing for his ac actual innocence,
(25:00):
or have been arguing for his actual innocence, which is
a much higher bar to clear for the defense than
just that he's not guilty. So they are suggesting that
they have evidence and that they know that he is
actually innocent and can prove that in court. I think
maybe some of his lawmaker supporters are taking a kind
(25:22):
of a more conservative approach and saying that there is
just enough doubt about the fairness of his trial and
that he was afforded the proper due process, and we
just shouldn't be executing somebody if there is that doubt
whether or not we think he is actually innocent. So
there is a real range of routes that his supporters
(25:44):
are pursuing, and.
Speaker 3 (25:45):
I mean, I think that is what so many death
penalty cases come down to, and like they're not usually
done in this like this level of scrutiny, even when
we have had like high profile cases like Melissa Lucy
on these other cases that are very high profile, very rarely,
I think is the evidence played out so publicly and like,
but often it does come down to more than just
(26:07):
like did they do it or not right?
Speaker 2 (26:10):
So many of these, like innocence cases, are.
Speaker 3 (26:13):
Did we like follow all of the proceed like it
was all of this handled correctly? Because the bar is
so I mean, you're putting someone to death, Like I
think the bar for many criminal cases is like, did we,
you know, give this person due process? But when the
bar for this is so high, like I think they
often succeed on these, not on the merits, but on
the you know, this person was not given due process totally.
Speaker 1 (26:36):
It's interesting to just hear this conversation about shaking baby syndrome.
We actually talked on last week's podcast about how I
used to cover criminal trials and I covered a shaken
baby case in two thousand and nine. I went back
just before the show and googled try to figure out
when it was, and in that case, there was I
(26:59):
think the the medical consensus on shake and baby syndrome
had not reached maybe what it is now, but there
were people who were casting doubt on it. And I
have this memory of sitting there in that trial and thinking,
you know, you sort of maybe some people at least
(27:22):
I'll speak for myself, sit in these trials and they think,
you know, the prosecution has no reason to push a
certain narrative, but the defense is going to find, you know,
has clear motivation to try to make a case about
you know, this isn't real. And so they brought in
a witness who you know, was talking about how the
(27:42):
science behind shaken baby syndrome was not quite where it
is now. But it's hard to not look at that
skeptically when you're thinking, Okay, they're going to do anything
to try to save their client from this case. It's
interesting the person actually was found not guilty in that case,
but it does like make me think about the junk
law which was passed four years later, and how that
(28:03):
might cause you to want to reconsider some of those cases.
You know, if you can demonstrate the change medical consensus,
it might really mean something in the eyes of a jury,
which is.
Speaker 3 (28:19):
I think why this whole thing is so interesting because
I think there are people who are just very very
opposed to, you know, the death penalty in general, and
like are like work specifically on death penalty cases, and
we might think of them as sort of being one
like political leaning. It's interesting about this case is it's
like it's sort of, like you said, cross cutting across
(28:40):
political leanings, and it's not Ben is clearcut of like
just the defense versus the prosecute, you know what I mean,
Like it's gotten very very I mean, I think a
lot of lawmakers who are very supportive of the death
penalty generally are very opposed in this case.
Speaker 1 (28:58):
Yes, well, I mean Brian Harrison, you know, among if
not the most conservative member of the Texas House, teaming
up with Joe Moody, a Democrat, teaming up with Jeff Leech,
a Republican, but who does not get along very well
with Brian Harrison at all. I mean, if you follow
them on Twitter, they post shots at each other at times.
(29:22):
And then on the other side you have you know,
Ken Paxton and Mitch Little, also very conservative folks. But
you know, there was a press conference right where a
big Republican donor, Doug Deeson, came out in supportive Roberson,
and so those kind of mixed alliances have been really
interesting to watch. I mean, I also I'm curious, as
(29:44):
the law and politics reporter Eleanor, you know, I mean,
what do you think about just the way this case
has been politicized, and I mean there seemed to be
you know, we had a story about this last a
lot of concerns around just how so many more court
(30:04):
cases are being played out in the court of public
opinion as opposed to the weighan of evidence and everything
that goes on there.
Speaker 4 (30:11):
Yeah.
Speaker 3 (30:11):
Absolutely, it's been so interesting. I remember like the after
that subpoena when we all were like, like the editors
and the readers were like, what does that mean? And
we're like, oh, I don't know. I don't think anyone knows.
And we were like calling judges who were like, yeah,
we don't know either. So it's really, I mean, unprecedented
in so many ways. But I do think the pressure
on the courts around this, I think in some ways
(30:33):
is unprecedented.
Speaker 2 (30:34):
But I also think in a.
Speaker 3 (30:35):
Lot of ways, like I think they feel this degree
of pressure on a lot of death penalty cases. This
is obviously getting even more attention, but like there have
been very very high profile and you know, I think
they probably would say, like they take all the death
penalty cases very seriously, but we're seeing just a lot
of I mean, the Court of Criminal Appeals itself is
you know, after the last election, became much more aligned
(31:00):
with Attorney General Ken Paxton, who helped unseat three incumbents, and.
Speaker 1 (31:05):
Because he disagreed with the ring that they issued.
Speaker 3 (31:07):
Yeah, he disagreed with their ruling on a you know,
on a voting rights case and he or election fraud case,
and he, you know, has been very overt about like
being willing to do that again and going to continue
to do that. Two current incumbents are not going to
run for reelection again. You know, we saw with the
Texas Supreme Court recently with when the quorum break happened,
(31:29):
and Paxton and Abbott both went to the text Supreme
Court saying like remove these people from their seats, and
Michael Quinn Sullivan, you know, sort of a conservative commentator saying,
you know, to the Texasupreme Court on Twitter, like Republican
primary voters are watching what you do on this.
Speaker 2 (31:48):
So a lot of very overt politicization of the courts.
Speaker 3 (31:51):
I will say, like, at least from so far from
an outsider's perspective, you know, there's not a ton of
evidence that the courts are bowing to that right. I mean,
the tex Supreme Court did not expel those House members
yet at least we like don't.
Speaker 2 (32:02):
Have a ruling the Court Criminal Appeals. Did you know.
Speaker 3 (32:08):
We've seen this in other rulings, but also in this
ruling sort of, you know, it seems like remain somewhat
consistent with their previous rulings on this, sou But I
have to imagine they're feeling that pressure.
Speaker 1 (32:18):
Yeah, I mean, and I would No one has said
this to me, but as I watched the defense on
this and having press conferences with a big Republican donor,
or having people like Brian Harrison and Jeff Leach come
out in favor of them, you know, I've got to
think that one of the reasons they're using those voices
is to try to send a signal to the Court
of Criminal Appeals that says, you know, you will get
(32:40):
some support from your right word flank if you, you know,
make what we feel is the right decision here, you
know what I mean?
Speaker 3 (32:47):
Doug Deson said exactly, Yeah, yeah.
Speaker 1 (32:49):
And I mean, you know, the thing about being a
judge on the Court of Criminal Appeals is nobody knows
who the hell you are. Right. I don't mean that
in a derogatory manner, I see, that's more derogatory about
the voters than it is about the judges. But just
like people don't know the names of the nine statewide
elected Quarter of Criminal Appeals, you also have to elect
nine Supreme Court members, and you have to elect your
(33:11):
local judges, and you have to elect your Court of
Appeals judges and your state representative and all these different
other things. Like it's just really hard to keep track
of that kind of thing. So the risk there is
one little case that people can glom onto could bring
you down, and you have to think about that. It's
I think it's probably impossible not to have that way
(33:32):
on the back of your head, even if you're going
to do the right thing and try to block it
out and make that you know, go away and make
the decision based on the law and the facts. But
maybe what they're trying to say here is exactly right,
Like it's not just this is not a case where
the hardline Republican primary voters is unanimous in thinking this
(33:56):
guy needs to be executed right now.
Speaker 3 (33:58):
Yeah, I think can Pack has really posed the only
like meaningful threat to these like these judges who are
elected largely Like if you're in a coumbany, you can
get reelected.
Speaker 1 (34:09):
Based on your name basically.
Speaker 4 (34:10):
Yeah.
Speaker 1 (34:10):
Yeah.
Speaker 3 (34:11):
There was I mean a huge scandal probably twenty years
ago with a court criminal Appeals judge who was really
in the spotlight after she refused to let a lawyer
file an appeal like they were like twenty minutes late
and she locked the door, and it was this huge
national news story and she was like condemned from the
you know, fight everyone.
Speaker 1 (34:31):
And this was on a death row case.
Speaker 3 (34:32):
On a death row case, and he ended up being
executed despite because the lawyer was a few minutes late
to file the filing and she locked the door and
wouldn't let him file it.
Speaker 2 (34:41):
I mean, it was national news.
Speaker 3 (34:43):
And still she served another twenty years on the court,
re elected every year until she ran into the brick
wall that is Ken Paxton and was unseated last term. So,
you know, I think for a long time they haven't
really had to contend with this level of political pressure.
It is probably easier for them to hear from a
major Republican donor. You know, if they try to do
(35:03):
that to you on this, we're here to back you.
Speaker 1 (35:06):
Yeah. Yeah, So Kayla, where do we go from here?
Speaker 4 (35:13):
Well, it's sort of unclear. The Court of Criminal Appeals
and its order didn't lay out a timeline for the
Anderson County Court to act. This could very well be
another year's long process. When the CCA stayed his execution
in twenty sixteen, basically did a very similar thing that
they did on Thursday. They stayed in twenty sixteen. I
(35:33):
think COVID had something to do with it, But there
wasn't an evidentiary hearing until twenty twenty one to twenty
twenty one ish, four or five years later, and his
execution wasn't set again until eight years after that initial stay,
So it could be a really long process or not.
I don't know. Maybe how public it has become will
(35:56):
change the timeline. Another outstanding question is whether the Attorney
General is off is going to continue representing the state
in this part of the case. Again, obviously, con Packsin's
been very vocal about what he thinks and his office
is now, you know, representing the state, So it's hard
to imagine that if they continue doing that that they
will concede any of these points. So that is kind
(36:18):
of all still up in the air. And I think
all of the claims that Roberson's attorneys have been making
on his behalf, even though some of them were dismissed
by the CCA this latest round. I think what's included
in them, the facts of those or the claims made
in them, are still going to be relevant as they
make his case this time around in Anderson County.
Speaker 1 (36:36):
Yeah. I mean it does seem like maybe we're falling
into a pattern here though, where the Court of Criminal
Appeals sends it back and the court on the ground,
the district court does not seem very interested in changing,
you know, the result of this, and then it comes
back to this. You know what's going to break that cycle?
Either way?
Speaker 3 (36:53):
I think we'll have to see, well, potentially some new
faces on the Court of Criminal Appeals.
Speaker 2 (36:57):
Yeah, if I got two people stepping down, Yeah.
Speaker 1 (37:00):
That could be Okay. Well, that is all we have
for today. Thank you to our producers, Rob and Chris,
and thank you Kyla. We will talk to you all
next week.
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