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Speaker 1: Hello, and welcome to the Texas Tribune trip cast for Tuesday,

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October fourteenth. I am Matthew Watkins, editor in chief of

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the Texas Tribune, joined as usual by Politics and Justice

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reporter Eleanor Klebanoff.

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Speaker 2: Hell, still not my title, Law and.

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Speaker 1: Politics, Law in politics, politics, justice.

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Speaker 3: Politics, the you know, law and order and CSI and

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justice politics reporter.

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Speaker 1: Yeah. I will get it at some point, or maybe

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I won't. Yeah, maybe not. Keeps working. How are you doing.

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Speaker 2: I'm doing well. And there's a real full chill in

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the air.

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Speaker 1: Oh yeah, low nineties.

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Speaker 2: Yeah, it's amazing.

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Speaker 1: Yeah, I really enjoyed that at acl Fest.

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Speaker 2: Yeah, were you at a cl I was, and.

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Speaker 1: I continue to be too old for them. I only

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went on Saturday with my daughter and my wife. Daughter

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very excited to see Sabrina Carpenter. I went and saw

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the Strokes because, as previously mentioned, I'm old, and yeah, yes,

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it was a great time.

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Speaker 3: You just threw your daughter into the Sabrina crowd and

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we're like, we'll meet back at A at the end.

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Speaker 1: Yeah. Well, so basically, my daughter had a soccer game

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at eight am in San Antonio, so we had to

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wake up at six and driver to San Antonio and

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then we drove back and then we got to the

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festival at around two two thirty and then got ended

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up getting home around like midnight. So it was an

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incredibly long day and my daughter was like, this is

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too much. So they like actually like stayed back and

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worked in the mix. I was watching the Strokes and

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also watching the texting and football game on my phone.

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Speaker 3: Yes, fair, fair, like whole is like the first part

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so beautiful, like getting to share a music festival with

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your child.

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Speaker 1: Yeah.

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Speaker 3: The setup of after driving her at six am to

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a soccer game is like a real mixed bag on parenthood.

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Speaker 1: Yeah you know. And then she was like convinced that

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she had lung cancer because of all the people who

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were smoking. And I was like, actually, that pain you

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feel on your legs is actually all the dust.

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Speaker 3: Right, yeah, you're like you can smoke a ton, don't

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even more like honestly, the smoking's not the profitable Yeah.

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Speaker 1: Yeah, so anyway, nice.

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Speaker 3: I did not go to a cl this year, but

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most I was most would have gone to see Tea Pain.

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Speaker 1: So I went to the first ten ACL fests and

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then I retired, So I was like, this is too

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it's too much, and then I went enough since then

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to forget how terrible it is.

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Speaker 2: Yeah, every time it's a new Yeah, Yeah, it was.

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Speaker 1: Actually pretty fun. Japanese Breakfast actually was the best show

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with that band. Yeah, really great.

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Speaker 2: Yeah.

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Speaker 4: Did you go to IC I did. I had a

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very chaotic experience. I did not have tickets, so me

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and my friends got their Sunday at four pm and

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I held up a sign that said need four wristbands.

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Speaker 2: Had they were quo.

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Speaker 4: The scalpers were quoting us like four hundred dollars for

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like five hours left of the vessel, So we posted

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up at lose and I held up my sign. Eventually

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did manage to get too, so I went in and

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saw two DJs.

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Speaker 1: Interesting.

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Speaker 2: I will say I've said it before, I'll say it again. Kala,

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We're very different people.

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Speaker 1: That voice you heard was indeed Kala Glow are politics reporter. Yes,

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I know.

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Speaker 2: Kayla's more straightforward, yeah, fancy.

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Speaker 1: But this week she is here to talk to us

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about Robert Roberson, who was at least coming into this

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week when we scheduled this podcast scheduled to be put

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to death by the State of Texas for the two

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thousand and three conviction for killing his daughter. His case,

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as you may know, has become a high profile cause

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for death PILNY opponents who believe Texas might be trying

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to execute an innocent man. But on Thursday, the state's

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highest criminal court delayed the execution for the second time

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in less than a year. It was a second time

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in less than a year that Robson was essentially days

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away from being executed and a court stepped in to

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block it all. Through this whole process, really, this whole

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past year, some of Texas's highest profile politicians have been

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fighting over the Robson case, in a fight that sort

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of breaks down under sort of non ideological lines. It's

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been sort of an interesting mix of lawmakers on both

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sides of the issue. But I will speak for myself.

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I won't speak for you Eleanor, but at least for myself.

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As this fight has been going on, it's been a

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bit challenging to sort of make sense of the facts.

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I would say both sides seem very certain and confident

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in their position as to whether Robert Roberson did this. So, Kayla,

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you are here to break it down for us. Thank

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you for joining us on the podcast.

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Speaker 4: Thanks for having me.

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Speaker 1: Even after an eventful ACL festival. So let's just start

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with the basics here. Can you tell us about the

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crime that Roverson is accused of.

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Speaker 4: Yes, he is accused and was convicted of murdering his

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two year old daughter, Nicki. He was convicted in two

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thousand and three. She died in two thousand and two

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and at the time when he brought her to the hospital,

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the nurses and doctors he had said that he had

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woken to find her fallen from the bed and she

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was unresponsive, but he didn't know what was going on.

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She had been really sick in the weeks leading up

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to that, but at the hospital, the doctors and nurses

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didn't think that, you know, a fall could have caused this,

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and so they saw the signs that at the time

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told them to diagnose her with shaken baby syndrome, which

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is basically when a child or a baby is shaken

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so violently that they are really injured or die. So

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that is what he was convicted of in two thousand

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and three. He has maintained his innocence over the past

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twenty plus years on death row. But you know, even

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at his trial, his defense layer didn't pursue that innocence claim.

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Didn't you know, defend him as if believing that he

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were innocent. And so now you know, medical consensus has evolved.

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His lawyers have presented evidence they say debunks that Jake

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and baby diagnosis and that there was no crime.

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Speaker 1: Okay, let's let's get into that. Now, why do people

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believe Why do the people who believe he's innocent believe

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he is innocent?

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Speaker 2: There is a lot.

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Speaker 4: So in the midst of all this, Texas in twenty

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thirteen passes a pretty groundbreaking law, the Junk Science Law.

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Texas was the first in the nation to do. A

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bunch of states have followed suit, and that provides for

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second looks in cases where the conviction rested on science

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that has since been discredited and recognizes that while the

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law is final, and you know, convictions are final, science

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and evidence evolves, like you think of things like my

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bite mark hypotheses. You know, people used to think that

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you can match someone's teeth up to a bitemark, and

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that is just not like held up in science anymore.

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So we pass this law in twenty thirteen that Roberson

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supporters think he is the poster child for to receive

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relief under and so a few things have happened since

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then as well. The medical guidance doesn't say to diagnose

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shake and baby syndrome when the three symptoms that it

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previously said to do it appear for it says you

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have to consider other factors before concluding abuse. His lawyers

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argue that things like sicknesses, accidents, those can call cause

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these three symptoms as well. It's bleeding behind the retina,

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some things in the brain.

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Speaker 2: Swelling, yeah, bleeding.

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Speaker 4: And so the medical consensus around how to diagnose shake

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and baby syndrome. It's still real, you know, but baby

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can still be really injured if they're violently shaken. Today

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it's not called chicken baby syndrome anymore, but how to

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diagnosis that guidance has changed. And his lawyers also point

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to evidence about Nikki that wasn't considered at trial as closely,

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that she was, you know, really sick in the days

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leading up to it, that she was prescribed medication that's

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no longer given to children her age, and they also

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point to flaws with how the autopsy was conducted, things

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with how Niki was handled at the hospital. So there

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are just a bunch of different, evolving, shifting things that

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have led people to say that it's not totally clear

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that he shook his baby to death and should be

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executed for it.

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Speaker 3: Right, there's sort of like correct, been wrong, right, but

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like two separate things here, one of which is like

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the actual facts of his specific case. And also, as

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you're saying this like consensus on shaking baby syndrome, that

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the junk science law doesn't say, oh, if you were

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conviction on something that has since been thrown out as

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like you can't possibly have done it. It just says

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like you should get a second look at your case

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and we'll like reassess it on modern medicine, And a

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big part of that is like the idea that what

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we now know is doctors used to be told, like

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pediatricians especially like if you see or like if you

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see these three symptoms the triad, like assume it's shaken

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baby syndrome and proceed from there, which sort of his

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lawyers of art you sort of like taint the whole

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thing from the jump. We now know that a lot

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of things can cause that, and that you know, often

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to shake a baby so hard to cause them to die,

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you might see other symptoms too, like a broken neck.

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Speaker 2: Sure, exactly, Yeah, yeah.

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Speaker 1: It's it's well, actually, I want to go back a

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little bit and more into the arguments on both sides here,

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but let's kind of continue with our history lesson first. Right,

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So he was is scheduled to be executed last year,

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and two state lawmakers really took up his cause. Jeff Leech,

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a Republican from the Colin County area north of Dallas,

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and Joe Moody, a Democrat from the Alpaso area, tell

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us a little bit about the dramatic actions they took

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to block the execution the first time here last year.

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Speaker 4: Yeah, well, I just want to note this was not

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last year, was not the first time his execution was blocked.

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The Court of Criminal Appeals in twenty sixteen actually stayed

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his execution using the junk science law, saying that it

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provided a second look. So his case went back to

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trial court that had an evidentiure hearing. But the court

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in Anderson County and the prosecutor, you know, maintained that

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the evidence was still convincing of his guilt, and so

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that's what they recommended to the CCA, and the CCA

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agreed Robertson's lawyer thinks that, you know, they never really

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meaningfully engaged with all the evidence she brought up, but

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that sort of covers the span between twenty sixteen up

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until twenty twenty three. Is when his execution data set

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for twenty three four last year, which is when all

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these lawmakers get involved and sort of set off this broader,

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more dramatic saga, political saga. I think it was in

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the month before his execution was set to take place,

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more than half I think it was something like two

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thirds of the Texas House sign onto a letter urging clemency.

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A few people have since walked back their support, like

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Tom wulliverson Briscoecine. But these lawmakers, you know, they were

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suggesting that maybe there was sufficient doubt to put a

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pause on the whole thing. The House Committee on Criminal Jurisprudence,

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which at the time Joe Moody chaired, and I believe

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Jeff Leach was the vice chair at the time, they

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held a couple of hearings before the execution was set

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to happen, and then the most dramatic moment happened the

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day before Roberson was set to be executed. They brought

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in a bunch of experts to testify as an all

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day hearing. Sometime in the middle of the day, the

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decision came from the Board of Pardons and Paroles that

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they were going to reject his application for clemency, which

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meant that only Governor Greg Abbott had the power at

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the time to issue a thirty day stay, which he

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did not do. At the end of this long, all

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day hearing, the committee, I believe it was a motion

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by Representative Brian Harrison, who's a Republican from Midlothian.

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Speaker 2: He raises this motion to.

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Speaker 4: Subpoena Robert Robertson, instructing him to come testify before the

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committee a few days after he was scheduled to die.

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So that sets off a whole whirlwinds the next day,

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and eventually the Texas Supreme Court steps in saying that

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this is a separation of powers issue between the executive

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and legislative branches of government. So the subpoena went out,

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or the executive branch's authority to execute him went out,

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and that leads to his execution being temporarily stayed, and

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eventually the Supreme Court says the lawmakers stepped a little

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bit too far, and Robert's execution was put back on

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the calendar this year and until last week was set

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to happen in two days from Luma recording and.

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Speaker 1: The idea back then there was essentially, you can't execute

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someone who we're asking to come testify before us Abbot.

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Speaker 3: Where you can't testify if you've been executed, so right, right, right.

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Speaker 1: You can't. You can't execute We need him to, yeah,

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get in, so so don't don't And Abbott and others

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basically essentially make the case that this is sort of

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a they are taking away the power of the governor

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to kind of make decisions on these, when it's essentially the.

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Speaker 3: Right anyone could subpoena anyone then and say, you know,

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we're never going to execute anybody.

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Speaker 1: Yeah, okay. So then the decision from the State Criminal

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Court of Appeals, we should mention a nine member court

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all republics, all elected statewide, that focus on basically the

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top criminal court in the state, issues a decision on Thursday.

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Tell us what that decision said.

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Speaker 4: That decision it so, first of all, it didn't roll

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on the merits of Robertson's claims that you know, this

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was junk science, or that Nikki.

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Speaker 2: Died from other causes.

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Speaker 4: In fact, dismissed a bunch of his appeals claiming judicial

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misconduct and other things, but it told the trial court

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in Anderson County to look again at Robert's case in

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light of a decision the criminal court made last year.

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So in the midst of all the subpoenas stuff going on,

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and the Court of Criminal Appeals overturned the conviction of

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a man out of Dallas County who was convicted based

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on a shaken baby syndrome diagnosis. In that decision, the

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Court of Criminal Appeals, you know, acknowledged that these science

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and medical consensus around shaking baby syndrome had evolved since

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that conviction, and so they overturned that guy's connection. His

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name was Andrew work Is, Andrew Worke, and Roberts attorneys

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had been, you know, citing that case as if you're

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going to acknowledge changing science in Andrew Worke's case, we

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think it should apply here as well. His attorney. Robert's attorney,

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Gretchen Schwen called the cases materially indistinguishable, and so that

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had been a point in her filings to the court

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since then. And so on Thursday, the CCA told the

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trial court to look at Robertson's case again in light

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of that particular decision. It didn't say, you know, this

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is a junkt science. It didn't say there are a

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lot of things wrong with us. It just said, since

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we've made that decision, we want you to look at

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this again in line of that. And so now you know,

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things will happen on the trial court level in Anderson County,

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and whether Robertson gets a new trial at the end

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of it is sort of tbd.

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Speaker 1: But right, So they didn't necessarily order a new trial.

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They said review on this sort of precedent we set

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in a previous case, exactly.

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Speaker 3: And at this point, so currently, right, the Attorney General's

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office has sort of stepped in to Anderson County to say,

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like they're taking the role of Anderson County and defending this.

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And as we know, Attorney General Ki Paxton has been very,

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very outspoken about the idea that Robertson should be executed

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for this. Yes, that's right.

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Speaker 1: So let's talk a little bit about the argument being

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made by people like Attorney General Kim Paxton that you know,

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Mitch Little Estate representative, another person really pushing this case

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that essentially, you know, people portraying people in the media,

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people who are in the legislature who are trying to

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defend him, lawyers are trying to portray this as some

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kind of open and shut case when the evidence actually

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points to a clear you know, guilt of Roberson, right, like.

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Speaker 2: A murder would walk free.

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Speaker 1: Yeah. Yeah, And I wanted to see if you can

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help me sort of think through what some of the cases.

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And I'll warn here, you know, we might go into

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the realm of fairly graphic details here so of you know,

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a very young child, So people don't want to listen

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to this. You might want to skip ahead or wait,

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you know, move on to next week to San Antonio. Yeah,

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but essentially what we have here is is, you know,

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I think the biggest one pointing to well, actually, let

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me let me just read from the descent in the

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Quarter of Criminal Appeals case, it says the morning after

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he being Robertson brought her being Nicki to the emergency room,

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where she was found to be limp lifeless, blue and bruised.

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Her pupils were fixed and dilated in the back of

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her head, exhibited a boggy, mushy bump. Applicants gave inconsistent

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accounts for Nicky's condition, centering around a possible fall from

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a bed, an explanation the the medical professionals found at

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odds with her condition. She died days later after life

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support had been withdrawn. You know, the argument that folks

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are making is essentially, when you hear that kind of injuries,

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this is not the case of you know, medicine making

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someone sick and eventually dying or any of these types

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of things. Is that he clearly abused her or bruises

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all over her leading to her death. What do Robson's

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supporters have to say about that case.

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Speaker 4: I think they have answers to all those points, and

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that's sort of the whole. I think people try to

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or trying to make conclusions where that's not what anyone's

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asking the court at this or was asking the court

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to do before he was scheduled to execute. I mean,

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I think they'll say so. Something that advocates for moving

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ahead with the execution often point to, I think is

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her autopsy report, in addition to some you know, images

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of her and those exact descriptions that you mentioned Matthew.

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I think his lawyers would say the autopsy itself was

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really flawed. The practitioner who conducted it was told before

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she conducted the autopsy of Nikki that Robertson had been

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arrested on murder charges, which today I think people have

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argued would taint the autopsy. I think his lawyers have

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also noted that she had a blunt disorder that you know,

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was caused by her all the other illnesses that she

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had that led her to bruise very easily and led

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to those marks that people point to that were reported

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in the autopsy. People also suggest that she had clear

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signs of blunt force trauma and that's clearly what she

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died from, was somebody hitting her. But in the trial record,

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the doctors who attended to her testified that blunt force

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trauma is indistinguishable from shaking, and so those are sort

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of kind of conflated descriptors in her record that people

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I think are seizing on and drawing conclusions from. I mean,

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they're just like a bunch of things like that. It's

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not an easy like if the appeals that his lawyers

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have brought are just it's just pages and pages of

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medical evaluations, very technical diagnoses and conclusions that they draw

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from all these different parts of her condition, and so

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I don't think it's so clear cut.

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Speaker 1: Yeah. I mean, one of the things I'm going to

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quote yourself to you. You, I'm going to quote you

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to yourself basically, you know, the argument around the medical examiners.

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I thought was a really interesting when the medical report,

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you know, again describing multiple sites of trauma, bruises all over,

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you mentioned the blood condition that might have potentially contributed

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to that. You know, one of the things this team

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points to is now I'm quoting you. The treating for

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ysicians who first saw Nikki did not make note of

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multiple sites of physical trauma upon her arrival at the hospital,

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since she wasn't admitted with those injuries, and especially because

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she had that disorder, It's clear they came from two days.

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It's clear that the bruises came from two days of

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being picked up, moved, and manipulated during emergency procedures. This

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is your You're in that. I'm quoting you, quoting a

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group of lawmakers essentially saying that so essentially this idea

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of just like what may have happened after she was

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rushed to the hospital he possibly is now being blamed for, right,

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And let me ask I mean, I know some of

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the judges have said in this most recent time, but

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also throughout sort of like they're sort of saying, like,

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this is not a shaken baby case.

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Speaker 3: Like the question whether or not shaken baby syndrome is

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real or not, or whether they try it all that like,

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is not that like there is other evidence that he

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brought about her death. That and you know, some of

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the one of the jurors testified saying like, well, we

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convicted on the premise of shaking baby.

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Speaker 2: I mean, where does that stand now? Like it is

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still a shaken baby case?

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Speaker 1: Right?

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Speaker 4: That is also now in question, and that will be

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part of what the trial court has to decide of

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how central was her shaken baby diagnosis to Roberson's conviction.

398
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I think we saw in some of the dissenting opinions

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from the CCA, I think maybe two judges said that

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they did not think this was a shaking baby case,

401
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like you sail or that you know, there was a

402
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blunt force trauma and clear signs that he had brought

403
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about her death not solely through shaking. I think you

404
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will hear his lawyers say that that is a absurd

405
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case to make, and their references to shaking and shaking

406
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baby syndrome dozens and dozens and dozens times throughout the

407
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trial record. Like you said, a juror came out and

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said that this was solely what they convicted him based on,

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and that she would change her decision today if she

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had been presented with all these other facts. But that

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will be something that you know, the court will have

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to decide.

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Speaker 1: Yeah, I mean, this is a situation where even the

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jurors are split, right, because after the decision from the

415
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Court of Criminal Appeals this week, the foreman of the

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jury came out and told a local television station. He

417
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said that the jury did not convict Riverson based on

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sha shaken baby, shaken baby syndrome, that there was evident

419
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of blunt force trauma. He kind of quoted the nurses

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testifying at trial saying that you know, she was the

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bluest child one nurse I had ever seen. Her face

422
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was battered and bloodied. We already kind of talked about

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some of that background there, but then of course you

424
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then quote Terry Compton. Everything that was presented to us

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was all about shaking baby syndrome. That was what our

426
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decision was based on. Nothing else was ever mentioned or

427
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presented to us to consider, So there's split there. Obviously,

428
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you need a unanimous jury in order to convict someone

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to death, So, you know, could you possibly make the

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argument that at least wonder saying that in that changes thing,

431
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which which sort of leads me to my next question

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of what exactly are we supposed to be evaluating here?

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I mean, are we supposed to just you know, the courts.

434
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When I say we, I really mean the courts here?

435
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Are the courts supposed to be deciding he's guilty or

436
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he's not guilty. Are they supposed to be evaluating is

437
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he guilty beyond a reasonable doubt? Or are they supposed

438
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to be evaluating, you know, despite whether they think he's

439
00:24:30,640 --> 00:24:34,000
guilty or not guilty, that he deserves a new trial,

440
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or can they decide any of those things?

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Speaker 4: Right now? I think the rieman is far more limited.

442
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It's if under in light of the Andrew Urke decision

443
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out of Dallas County, that you know, there is sufficient

444
00:24:47,359 --> 00:24:51,920
doubt about how Robertson's trial went down to you know,

445
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recommends that he gets a new trial, and then ultimately

446
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the CCA will have to decide whether or not that

447
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should happen. His lawyers are arguing for his ac actual innocence,

448
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or have been arguing for his actual innocence, which is

449
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a much higher bar to clear for the defense than

450
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just that he's not guilty. So they are suggesting that

451
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they have evidence and that they know that he is

452
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actually innocent and can prove that in court. I think

453
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maybe some of his lawmaker supporters are taking a kind

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of a more conservative approach and saying that there is

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just enough doubt about the fairness of his trial and

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that he was afforded the proper due process, and we

457
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just shouldn't be executing somebody if there is that doubt

458
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whether or not we think he is actually innocent. So

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there is a real range of routes that his supporters

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are pursuing, and.

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Speaker 3: I mean, I think that is what so many death

462
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penalty cases come down to, and like they're not usually

463
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done in this like this level of scrutiny, even when

464
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we have had like high profile cases like Melissa Lucy

465
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on these other cases that are very high profile, very rarely,

466
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I think is the evidence played out so publicly and like,

467
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but often it does come down to more than just

468
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like did they do it or not right?

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Speaker 2: So many of these, like innocence cases, are.

470
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Speaker 3: Did we like follow all of the proceed like it

471
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was all of this handled correctly? Because the bar is

472
00:26:18,920 --> 00:26:21,240
so I mean, you're putting someone to death, Like I

473
00:26:21,279 --> 00:26:24,480
think the bar for many criminal cases is like, did we,

474
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you know, give this person due process? But when the

475
00:26:26,920 --> 00:26:29,160
bar for this is so high, like I think they

476
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often succeed on these, not on the merits, but on

477
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the you know, this person was not given due process totally.

478
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Speaker 1: It's interesting to just hear this conversation about shaking baby syndrome.

479
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We actually talked on last week's podcast about how I

480
00:26:42,680 --> 00:26:48,200
used to cover criminal trials and I covered a shaken

481
00:26:48,279 --> 00:26:51,000
baby case in two thousand and nine. I went back

482
00:26:51,079 --> 00:26:53,000
just before the show and googled try to figure out

483
00:26:53,000 --> 00:26:59,119
when it was, and in that case, there was I

484
00:26:59,119 --> 00:27:05,960
think the the medical consensus on shake and baby syndrome

485
00:27:06,000 --> 00:27:09,000
had not reached maybe what it is now, but there

486
00:27:09,039 --> 00:27:13,640
were people who were casting doubt on it. And I

487
00:27:13,759 --> 00:27:16,640
have this memory of sitting there in that trial and thinking,

488
00:27:16,960 --> 00:27:22,160
you know, you sort of maybe some people at least

489
00:27:22,200 --> 00:27:25,480
I'll speak for myself, sit in these trials and they think,

490
00:27:26,279 --> 00:27:29,400
you know, the prosecution has no reason to push a

491
00:27:29,440 --> 00:27:32,119
certain narrative, but the defense is going to find, you know,

492
00:27:32,240 --> 00:27:35,039
has clear motivation to try to make a case about

493
00:27:35,119 --> 00:27:37,079
you know, this isn't real. And so they brought in

494
00:27:37,119 --> 00:27:42,000
a witness who you know, was talking about how the

495
00:27:42,599 --> 00:27:46,279
science behind shaken baby syndrome was not quite where it

496
00:27:46,359 --> 00:27:49,680
is now. But it's hard to not look at that

497
00:27:49,720 --> 00:27:52,799
skeptically when you're thinking, Okay, they're going to do anything

498
00:27:52,799 --> 00:27:54,839
to try to save their client from this case. It's

499
00:27:54,880 --> 00:27:57,720
interesting the person actually was found not guilty in that case,

500
00:27:57,880 --> 00:27:59,759
but it does like make me think about the junk

501
00:27:59,839 --> 00:28:03,279
law which was passed four years later, and how that

502
00:28:03,559 --> 00:28:08,119
might cause you to want to reconsider some of those cases.

503
00:28:09,880 --> 00:28:12,759
You know, if you can demonstrate the change medical consensus,

504
00:28:12,799 --> 00:28:18,200
it might really mean something in the eyes of a jury,

505
00:28:18,759 --> 00:28:19,079
which is.

506
00:28:19,079 --> 00:28:21,119
Speaker 3: I think why this whole thing is so interesting because

507
00:28:21,160 --> 00:28:24,720
I think there are people who are just very very

508
00:28:24,759 --> 00:28:28,200
opposed to, you know, the death penalty in general, and

509
00:28:28,240 --> 00:28:32,880
like are like work specifically on death penalty cases, and

510
00:28:32,920 --> 00:28:34,519
we might think of them as sort of being one

511
00:28:34,920 --> 00:28:38,680
like political leaning. It's interesting about this case is it's

512
00:28:38,720 --> 00:28:40,920
like it's sort of, like you said, cross cutting across

513
00:28:40,920 --> 00:28:46,640
political leanings, and it's not Ben is clearcut of like

514
00:28:46,680 --> 00:28:48,359
just the defense versus the prosecute, you know what I mean,

515
00:28:48,400 --> 00:28:51,920
Like it's gotten very very I mean, I think a

516
00:28:51,920 --> 00:28:54,039
lot of lawmakers who are very supportive of the death

517
00:28:54,079 --> 00:28:57,799
penalty generally are very opposed in this case.

518
00:28:58,079 --> 00:29:04,559
Speaker 1: Yes, well, I mean Brian Harrison, you know, among if

519
00:29:04,599 --> 00:29:08,200
not the most conservative member of the Texas House, teaming

520
00:29:08,279 --> 00:29:12,119
up with Joe Moody, a Democrat, teaming up with Jeff Leech,

521
00:29:12,200 --> 00:29:15,200
a Republican, but who does not get along very well

522
00:29:15,240 --> 00:29:17,440
with Brian Harrison at all. I mean, if you follow

523
00:29:17,480 --> 00:29:22,599
them on Twitter, they post shots at each other at times.

524
00:29:22,720 --> 00:29:24,960
And then on the other side you have you know,

525
00:29:25,039 --> 00:29:28,920
Ken Paxton and Mitch Little, also very conservative folks. But

526
00:29:30,079 --> 00:29:32,839
you know, there was a press conference right where a

527
00:29:32,880 --> 00:29:37,200
big Republican donor, Doug Deeson, came out in supportive Roberson,

528
00:29:37,200 --> 00:29:41,240
and so those kind of mixed alliances have been really

529
00:29:41,240 --> 00:29:44,119
interesting to watch. I mean, I also I'm curious, as

530
00:29:44,200 --> 00:29:50,160
the law and politics reporter Eleanor, you know, I mean,

531
00:29:50,200 --> 00:29:53,000
what do you think about just the way this case

532
00:29:53,079 --> 00:29:57,200
has been politicized, and I mean there seemed to be

533
00:29:58,279 --> 00:30:01,000
you know, we had a story about this last a

534
00:30:01,039 --> 00:30:04,279
lot of concerns around just how so many more court

535
00:30:04,319 --> 00:30:06,720
cases are being played out in the court of public

536
00:30:06,759 --> 00:30:10,119
opinion as opposed to the weighan of evidence and everything

537
00:30:10,119 --> 00:30:10,880
that goes on there.

538
00:30:11,160 --> 00:30:11,359
Speaker 4: Yeah.

539
00:30:11,400 --> 00:30:14,799
Speaker 3: Absolutely, it's been so interesting. I remember like the after

540
00:30:14,839 --> 00:30:18,240
that subpoena when we all were like, like the editors

541
00:30:18,680 --> 00:30:20,200
and the readers were like, what does that mean? And

542
00:30:20,240 --> 00:30:22,359
we're like, oh, I don't know. I don't think anyone knows.

543
00:30:22,359 --> 00:30:24,000
And we were like calling judges who were like, yeah,

544
00:30:24,039 --> 00:30:27,160
we don't know either. So it's really, I mean, unprecedented

545
00:30:27,160 --> 00:30:30,319
in so many ways. But I do think the pressure

546
00:30:30,400 --> 00:30:33,519
on the courts around this, I think in some ways

547
00:30:33,599 --> 00:30:34,640
is unprecedented.

548
00:30:34,640 --> 00:30:35,880
Speaker 2: But I also think in a.

549
00:30:35,920 --> 00:30:38,720
Speaker 3: Lot of ways, like I think they feel this degree

550
00:30:38,759 --> 00:30:41,000
of pressure on a lot of death penalty cases. This

551
00:30:41,160 --> 00:30:44,359
is obviously getting even more attention, but like there have

552
00:30:44,400 --> 00:30:47,359
been very very high profile and you know, I think

553
00:30:47,359 --> 00:30:49,039
they probably would say, like they take all the death

554
00:30:49,039 --> 00:30:52,640
penalty cases very seriously, but we're seeing just a lot

555
00:30:52,640 --> 00:30:55,359
of I mean, the Court of Criminal Appeals itself is

556
00:30:55,839 --> 00:31:00,720
you know, after the last election, became much more aligned

557
00:31:00,759 --> 00:31:04,599
with Attorney General Ken Paxton, who helped unseat three incumbents, and.

558
00:31:05,039 --> 00:31:07,440
Speaker 1: Because he disagreed with the ring that they issued.

559
00:31:07,559 --> 00:31:10,400
Speaker 3: Yeah, he disagreed with their ruling on a you know,

560
00:31:10,960 --> 00:31:15,039
on a voting rights case and he or election fraud case,

561
00:31:15,079 --> 00:31:18,279
and he, you know, has been very overt about like

562
00:31:18,400 --> 00:31:20,200
being willing to do that again and going to continue

563
00:31:20,200 --> 00:31:22,200
to do that. Two current incumbents are not going to

564
00:31:22,279 --> 00:31:24,880
run for reelection again. You know, we saw with the

565
00:31:24,880 --> 00:31:29,720
Texas Supreme Court recently with when the quorum break happened,

566
00:31:29,920 --> 00:31:34,880
and Paxton and Abbott both went to the text Supreme

567
00:31:34,920 --> 00:31:37,160
Court saying like remove these people from their seats, and

568
00:31:38,279 --> 00:31:42,400
Michael Quinn Sullivan, you know, sort of a conservative commentator saying,

569
00:31:42,400 --> 00:31:46,000
you know, to the Texasupreme Court on Twitter, like Republican

570
00:31:46,039 --> 00:31:48,400
primary voters are watching what you do on this.

571
00:31:48,519 --> 00:31:50,960
Speaker 2: So a lot of very overt politicization of the courts.

572
00:31:51,079 --> 00:31:53,000
Speaker 3: I will say, like, at least from so far from

573
00:31:53,000 --> 00:31:55,880
an outsider's perspective, you know, there's not a ton of

574
00:31:55,880 --> 00:31:57,920
evidence that the courts are bowing to that right. I mean,

575
00:31:57,960 --> 00:32:00,799
the tex Supreme Court did not expel those House members

576
00:32:00,880 --> 00:32:02,359
yet at least we like don't.

577
00:32:02,160 --> 00:32:06,000
Speaker 2: Have a ruling the Court Criminal Appeals. Did you know.

578
00:32:08,000 --> 00:32:09,559
Speaker 3: We've seen this in other rulings, but also in this

579
00:32:09,640 --> 00:32:13,119
ruling sort of, you know, it seems like remain somewhat

580
00:32:13,160 --> 00:32:16,759
consistent with their previous rulings on this, sou But I

581
00:32:16,799 --> 00:32:18,200
have to imagine they're feeling that pressure.

582
00:32:18,359 --> 00:32:20,880
Speaker 1: Yeah, I mean, and I would No one has said

583
00:32:20,880 --> 00:32:23,400
this to me, but as I watched the defense on

584
00:32:23,440 --> 00:32:26,240
this and having press conferences with a big Republican donor,

585
00:32:26,319 --> 00:32:29,440
or having people like Brian Harrison and Jeff Leach come

586
00:32:29,440 --> 00:32:32,200
out in favor of them, you know, I've got to

587
00:32:32,240 --> 00:32:35,000
think that one of the reasons they're using those voices

588
00:32:35,160 --> 00:32:37,039
is to try to send a signal to the Court

589
00:32:37,039 --> 00:32:40,599
of Criminal Appeals that says, you know, you will get

590
00:32:40,680 --> 00:32:44,440
some support from your right word flank if you, you know,

591
00:32:44,519 --> 00:32:46,759
make what we feel is the right decision here, you

592
00:32:46,759 --> 00:32:47,160
know what I mean?

593
00:32:47,240 --> 00:32:50,000
Speaker 3: Doug Deson said exactly, Yeah, yeah.

594
00:32:49,680 --> 00:32:51,880
Speaker 1: And I mean, you know, the thing about being a

595
00:32:52,000 --> 00:32:54,960
judge on the Court of Criminal Appeals is nobody knows

596
00:32:54,960 --> 00:32:58,039
who the hell you are. Right. I don't mean that

597
00:32:58,079 --> 00:33:01,839
in a derogatory manner, I see, that's more derogatory about

598
00:33:01,839 --> 00:33:03,599
the voters than it is about the judges. But just

599
00:33:03,640 --> 00:33:06,839
like people don't know the names of the nine statewide

600
00:33:06,880 --> 00:33:09,359
elected Quarter of Criminal Appeals, you also have to elect

601
00:33:09,480 --> 00:33:11,720
nine Supreme Court members, and you have to elect your

602
00:33:11,799 --> 00:33:14,400
local judges, and you have to elect your Court of

603
00:33:14,440 --> 00:33:17,079
Appeals judges and your state representative and all these different

604
00:33:17,119 --> 00:33:19,319
other things. Like it's just really hard to keep track

605
00:33:19,359 --> 00:33:22,359
of that kind of thing. So the risk there is

606
00:33:22,559 --> 00:33:26,240
one little case that people can glom onto could bring

607
00:33:26,319 --> 00:33:29,079
you down, and you have to think about that. It's

608
00:33:29,200 --> 00:33:32,000
I think it's probably impossible not to have that way

609
00:33:32,079 --> 00:33:34,000
on the back of your head, even if you're going

610
00:33:34,079 --> 00:33:35,799
to do the right thing and try to block it

611
00:33:35,839 --> 00:33:39,640
out and make that you know, go away and make

612
00:33:39,640 --> 00:33:43,519
the decision based on the law and the facts. But

613
00:33:45,440 --> 00:33:48,240
maybe what they're trying to say here is exactly right,

614
00:33:48,359 --> 00:33:51,880
Like it's not just this is not a case where

615
00:33:51,960 --> 00:33:56,319
the hardline Republican primary voters is unanimous in thinking this

616
00:33:56,359 --> 00:33:58,039
guy needs to be executed right now.

617
00:33:58,720 --> 00:34:02,880
Speaker 3: Yeah, I think can Pack has really posed the only

618
00:34:02,920 --> 00:34:06,680
like meaningful threat to these like these judges who are

619
00:34:06,720 --> 00:34:08,719
elected largely Like if you're in a coumbany, you can

620
00:34:08,760 --> 00:34:09,760
get reelected.

621
00:34:09,320 --> 00:34:10,480
Speaker 1: Based on your name basically.

622
00:34:10,599 --> 00:34:10,760
Speaker 4: Yeah.

623
00:34:10,800 --> 00:34:11,000
Speaker 1: Yeah.

624
00:34:11,039 --> 00:34:15,079
Speaker 3: There was I mean a huge scandal probably twenty years

625
00:34:15,079 --> 00:34:18,159
ago with a court criminal Appeals judge who was really

626
00:34:18,159 --> 00:34:20,559
in the spotlight after she refused to let a lawyer

627
00:34:21,639 --> 00:34:25,440
file an appeal like they were like twenty minutes late

628
00:34:25,480 --> 00:34:27,199
and she locked the door, and it was this huge

629
00:34:27,280 --> 00:34:29,920
national news story and she was like condemned from the

630
00:34:30,000 --> 00:34:31,039
you know, fight everyone.

631
00:34:31,400 --> 00:34:33,039
Speaker 1: And this was on a death row case.

632
00:34:32,880 --> 00:34:34,719
Speaker 3: On a death row case, and he ended up being

633
00:34:35,039 --> 00:34:37,880
executed despite because the lawyer was a few minutes late

634
00:34:37,920 --> 00:34:40,000
to file the filing and she locked the door and

635
00:34:40,000 --> 00:34:41,000
wouldn't let him file it.

636
00:34:41,320 --> 00:34:43,039
Speaker 2: I mean, it was national news.

637
00:34:43,519 --> 00:34:48,159
Speaker 3: And still she served another twenty years on the court,

638
00:34:48,199 --> 00:34:51,239
re elected every year until she ran into the brick

639
00:34:51,280 --> 00:34:54,079
wall that is Ken Paxton and was unseated last term. So,

640
00:34:54,760 --> 00:34:56,360
you know, I think for a long time they haven't

641
00:34:56,360 --> 00:34:58,480
really had to contend with this level of political pressure.

642
00:34:58,840 --> 00:35:00,880
It is probably easier for them to hear from a

643
00:35:00,920 --> 00:35:03,719
major Republican donor. You know, if they try to do

644
00:35:03,760 --> 00:35:06,079
that to you on this, we're here to back you.

645
00:35:06,320 --> 00:35:11,639
Speaker 1: Yeah. Yeah, So Kayla, where do we go from here?

646
00:35:13,000 --> 00:35:18,119
Speaker 4: Well, it's sort of unclear. The Court of Criminal Appeals

647
00:35:18,119 --> 00:35:21,119
and its order didn't lay out a timeline for the

648
00:35:21,159 --> 00:35:24,000
Anderson County Court to act. This could very well be

649
00:35:24,079 --> 00:35:27,960
another year's long process. When the CCA stayed his execution

650
00:35:28,119 --> 00:35:30,320
in twenty sixteen, basically did a very similar thing that

651
00:35:30,360 --> 00:35:33,440
they did on Thursday. They stayed in twenty sixteen. I

652
00:35:33,440 --> 00:35:35,320
think COVID had something to do with it, But there

653
00:35:35,400 --> 00:35:41,320
wasn't an evidentiary hearing until twenty twenty one to twenty

654
00:35:41,360 --> 00:35:45,639
twenty one ish, four or five years later, and his

655
00:35:45,760 --> 00:35:50,559
execution wasn't set again until eight years after that initial stay,

656
00:35:50,880 --> 00:35:53,360
So it could be a really long process or not.

657
00:35:53,440 --> 00:35:55,840
I don't know. Maybe how public it has become will

658
00:35:56,000 --> 00:35:59,440
change the timeline. Another outstanding question is whether the Attorney

659
00:35:59,440 --> 00:36:02,079
General is off is going to continue representing the state

660
00:36:02,199 --> 00:36:07,079
in this part of the case. Again, obviously, con Packsin's

661
00:36:07,079 --> 00:36:09,320
been very vocal about what he thinks and his office

662
00:36:09,360 --> 00:36:12,639
is now, you know, representing the state, So it's hard

663
00:36:12,679 --> 00:36:14,679
to imagine that if they continue doing that that they

664
00:36:14,719 --> 00:36:18,719
will concede any of these points. So that is kind

665
00:36:18,719 --> 00:36:21,360
of all still up in the air. And I think

666
00:36:21,440 --> 00:36:24,039
all of the claims that Roberson's attorneys have been making

667
00:36:24,039 --> 00:36:26,280
on his behalf, even though some of them were dismissed

668
00:36:26,280 --> 00:36:29,880
by the CCA this latest round. I think what's included

669
00:36:29,920 --> 00:36:32,440
in them, the facts of those or the claims made

670
00:36:32,480 --> 00:36:34,519
in them, are still going to be relevant as they

671
00:36:34,639 --> 00:36:36,719
make his case this time around in Anderson County.

672
00:36:36,920 --> 00:36:38,800
Speaker 1: Yeah. I mean it does seem like maybe we're falling

673
00:36:38,880 --> 00:36:41,199
into a pattern here though, where the Court of Criminal

674
00:36:41,199 --> 00:36:45,039
Appeals sends it back and the court on the ground,

675
00:36:45,079 --> 00:36:48,559
the district court does not seem very interested in changing,

676
00:36:49,079 --> 00:36:50,800
you know, the result of this, and then it comes

677
00:36:50,840 --> 00:36:53,400
back to this. You know what's going to break that cycle?

678
00:36:53,480 --> 00:36:53,840
Either way?

679
00:36:53,920 --> 00:36:56,440
Speaker 3: I think we'll have to see, well, potentially some new

680
00:36:56,440 --> 00:36:57,719
faces on the Court of Criminal Appeals.

681
00:36:57,760 --> 00:37:00,679
Speaker 2: Yeah, if I got two people stepping down, Yeah.

682
00:37:00,159 --> 00:37:03,559
Speaker 1: That could be Okay. Well, that is all we have

683
00:37:03,760 --> 00:37:06,599
for today. Thank you to our producers, Rob and Chris,

684
00:37:06,639 --> 00:37:08,519
and thank you Kyla. We will talk to you all

685
00:37:08,519 --> 00:37:08,920
next week.