The Roberson verdict puts the Texas criminal court in the spotlight

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Normally this is nothing more than a minor matter: Texas is one of only two states with two supreme courts, one for civil cases and one for criminal cases.

But on Thursday evening, this strange whim of the judicial administration may have saved a man’s life, at least temporarily.

The Court of Appeals, Texas’ highest criminal court, has repeatedly and definitively ruled that Robert Roberson should be executed for the 2002 killing of his 2-year-old daughter.

This week, the Texas Supreme Court, which has jurisdiction over civil cases, intervened and stayed the execution after a bipartisan group of lawmakers issued an unprecedented Hail Mary. Experts believe this is the first time in Texas history that a high court stopped an execution that had already been approved by another.

This legislative battle over the judiciary is the latest chapter in a brewing power struggle between Texas’ three branches of government. A vendetta by the executive branch in the form of Texas Attorney General Ken Paxton has already led to the first challenges in which three of the nine judges were removed.

Outgoing Justices Sharon Keller, Barbara Hervey and Michelle Slaughter were among the five justices who voted to move forward with Roberson’s execution. If even one of the new justices takes a different stance on the facts of Roberson’s case, it could open the door to future litigation and shift the votes in his favor. But a conservative landslide could further dampen the hopes of a court that has repeatedly voted against him.

The earliest Roberson can be executed is 90 days after the state requests a new execution date. However, this will only happen once the outstanding legal issues have been clarified. Unprecedented judicial interventions by the executive and legislative branches, as well as an unexpected disagreement between the two Supreme Courts, have upended many things in Roberson’s situation.

The question before the Texas Supreme Court right now is not about Roberson’s guilt or innocence, but rather about “the separation of powers at a high level,” Justice Evan Young wrote in the concurring opinion that blocked the execution. As for the way these lawmakers brought Texas down, he warned: “We don’t have a clear precedent.”

Two-headed monster

Texas’ divided court system dates back to the Civil War era, when splitting hallowed institutions down the middle seemed to be all the rage. As the Texas Supreme Court struggled with a backlog of cases, it was assisted in hearing criminal cases by a newly created appeals court.

More than 150 years later, Texas’ two supreme courts operate alongside each other largely without conflict. But pitting them against each other creates “a hot trial between us and our constitutional twin,” then-Texas Supreme Court Justice Don Willett wrote in 2011.

This latest clash between the two courts could reignite discussions about the balance of power between these two equals. Historically, death penalty cases were reserved exclusively for the Court of Criminal Appeals, with the court drawing international attention for high-profile executions.

Texas has the highest per capita execution rate of any state after Oklahoma, the only other state to have two supreme courts.

“Without the death penalty, I’m not sure there’s a case for a separate Supreme Court,” former Criminal Appeals Court judge Elsa Alcala said in an interview. “That’s how they justify their existence.”

Executive interference

But before this week, it wasn’t the death penalty that brought the Court of Criminal Appeals into the headlines this election season.

In 2021, the appeals court ruled 8-1 against Paxton, finding that his office must seek permission from district attorneys to investigate suspected voter fraud cases. Similar to the Roberson case, this was about the separation of powers – the executive branch interferes with the judiciary by prosecuting election cases without invitation.

Undeterred by the attempt to contain and balance his power, Paxton vowed revenge and vowed to “get rid of everyone” except the one judge who sided with him, the Tribune reported last year.

The three sitting justices up for re-election this year are all staunch conservatives with a reputation for being tough on crime and supporting the death penalty. They have nearly a century of combined experience on the bench, including Keller, who has served on the bench since 1994 and as presiding judge since 2000.

All three have been replaced by primary challengers, two of whom say they were handpicked by Paxton.

Gina Parker, who is running to replace Hervey, is a lawyer with no prior legal experience who owns a dental products manufacturing company. She is running against Democrat Nancy Mulder, a Dallas County criminal court judge.

Lee Finley, who is running to replace Slaughter, is a criminal defense attorney who also has no experience in the justice system. He is running against Dallas County Criminal District Court Judge Chika Anyiam.

For Keller’s seat, Republican David Schenk says he was not recruited by Paxton. A former judge on the Fifth Circuit Court of Appeals, Schenk has twice ruled against Paxton in felony conviction cases and previously served as chairman of the state Commission on Judicial Conduct. He is running against Travis County Prosecutor Holly Davis, who previously served as an attorney for the court.

After the primary unseated all three sitting justices, Hervey, who has been on the bench since 2001, told the Tribune that this interference from another branch of government made her worried about the future of the court.

“Darth Vader is not supposed to win the war in these films,” she said at the time.

Final result of the legislature

In 2002, two-year-old Nikki Curtis died in an East Texas hospital. At the time, doctors, nurses, law enforcement and, most importantly, a judge believed she was the victim of violent child abuse at the hands of her father, Roberson.

In the 22 years since, more evidence has come to light, both about Curtis’ short life and the diagnosis used to sentence Roberson to death. Texas courts have debated whether or not he should be executed, but each time it came down to the same place: the Texas Court of Criminal Appeals.

Two judges, Hervey and Keller, were on site for the entire duration of this case. Despite different legal mechanisms, new strategies, new evidence, new perspectives, each time a majority of the nine-person jury ultimately decided that he must die. The latest vote came Thursday evening after Paxton’s office appealed a Travis County judge’s injunction stopping the execution. A slim majority of the Court of Criminal Appeals overturned that verdict and voted to continue the execution.

Three of those five votes came from judges who will no longer be on the court in January. If even one of the new justices sees the case differently than the person he replaces, the balance of opinion could potentially tip in Roberson’s favor and provide new hope for future litigation before the court. But with two self-proclaimed Paxton allies in the race, support for the state’s position could grow stronger after January.

None of this would even be considered if members of the Texas House of Representatives hadn’t used their legislative power to try to thwart the judiciary. While it’s not immediately clear what legal avenues Roberson’s team might pursue in the future, given how much is currently in flux with the court, Alcala said it’s clear this is “not just a delaying tactic for delay’s sake.” .

“I think everyone involved is doing their best to achieve justice for a seemingly potentially innocent person who was convicted of junk science,” she said.

Whether this case will impact voters in these typically low-profile November voting rounds remains to be seen. But the stakes are high for Roberson, and a judge’s power in this case is already clear.

Earlier this month, the appeals court voted 5-4 to overturn the life sentence of a DeSoto man convicted of causing irreversible brain damage by shaking a 1-year-old. In the decision, the court noted that if the state’s experts were called to testify today, they would be “confronted with twenty years of reputable scientific studies and publications that, when presented graphically, consistently deviate from their stated positions.” .” As a result, “it would be more likely not to have been convicted.”

Hervey wrote this opinion and strongly rejected the “shaken baby premise” in this case. Just days later, she joined four others in voting to move forward with Roberson’s execution.