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