On October 21, Robert Roberson would do what no death row inmate has ever done. He had to testify before a committee of the Texas Legislature investigating his case.
This would have been a remarkable moment in the history of the death penalty. It would have offered hope for Roberson himself. It would also have marked a moment when the humanity of someone convicted of a capital crime was recognized by treating him or her as a credible witness in a public proceeding.
That explains why Texas officials, led by Governor Greg Abbott and Attorney General Ken Paxton, intervened to prevent Roberson from testifying. As Paxton said Wednesday, “A few lawmakers have grossly interfered with the justice system by ignoring the separation of powers set forth in the state constitution. They created a constitutional crisis on behalf of a man who beat his two-year-old daughter to death.”
Abbott, Paxton and their allies are determined to see Roberson executed and thereby silence his voice. They cannot get away with their plan.
They must follow the law and honor the subpoena, as the Texas Supreme Court did last week. Texas citizens, regardless of their views on the death penalty, should demand that Roberson be allowed to tell his story to the state legislature. Death row inmates, including Roberson, have sometimes given interviews to journalists. But it is quite another when one of them is asked to lend his voice to an official consideration of an urgent matter of public policy.
Even before this month’s events, Roberson’s case was unprecedented in many ways. In 2002, Roberson was sentenced to death for the murder of his daughter Nikki. The crucial evidence against him was provided by an expert who testified that Nikki had died of shaken baby syndrome.
If Roberson is executed, he would be the first person in the United States to be put to death based on a diagnosis of shaken baby syndrome. But since Roberson was convicted, shaken baby syndrome has fallen out of favor with many in the medical community. Judges and lawmakers in several states have expressed doubts about this.
Long before the Roberson case became public, similar doubts were raised in Texas. In 2013, the state passed a law colloquially referred to as a “junk science” law. As The Associated Press says, the law “allows a person convicted of a crime to seek relief if the evidence used against him is no longer credible.” And “at the time, it was praised by the legislature as a unique future-proof solution to wrongful convictions based on flawed science.”
Texas, hardly a paradigm of criminal justice liberalism, became the first state in the country to pass such a law, which “clarified that judges could consider changes in the scientific merit of already available evidence as a basis for granting relief after the conviction, even if after all direct appeals have been exhausted. “
Nevertheless, courts have repeatedly refused to allow Roberson, who has claimed innocence, to abuse that law through what his supporters say is “intentional misinterpretation.”
Roberson, who was scheduled to be executed on October 17, was saved when a group of Texas lawmakers ingeniously used an ordinary legislative power: the power to subpoena a witness to appear before legislative committees. It amounted to what I have called “a legislative delay.”
Allowing a death row inmate to testify before a legislative committee would mark a sharp break with a long history in which such testimony has not been considered credible. As Robert Popper, a former New York prosecutor, wrote, “For at least three hundred years, between the sixteenth and the nineteenth centuries, even the suspect in a criminal case was not allowed to testify on his own behalf.”
This same bar applied to people convicted of a crime. The famous legal commentator William Blackstone put it this way: “All witnesses, of whatever religion or country, who use their reason, should be received and examined, except those who are infamous or those who are interested in the case of the cause .”
In this country, prisoners and death row inmates were among such “notorious” people. Throughout the 19th century, American courts made that clear.
In the 1871 case of Ruffin v Commonwealth, a Virginia judge put it succinctly: “He has, in consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law vests in his humanity. He is the slave of the state for the time being. He is civiliter mortuus; and his estate, if he has any, is managed as that of a dead man.
The judge further explained: “The Bill of Rights is a statement of general principles for governing a society of free men, and not of convicted criminals and citizens who are civilly dead. Such men (…) are the slaves of the state punished for heinous crimes committed against the laws of the land.”
Courts no longer regard prisoners or death row inmates as slaves of the state or as civilly dead. They can now testify in court. And in many capital cases, prisoners are often offered incentives to testify against co-defendants. But it’s no coincidence that prison guards call a person awaiting execution a “dead man walking.”
In Roberson’s case, his testimony before the House Criminal Jurisprudence Committee would help lawmakers examine whether state courts are properly following the junk science law. State Rep. Joe Moody, the committee chairman, explained that the committee issued a subpoena to Roberson so he could “tell his story, what his life was like before and what the investigation looked like through his lens. … [T]The legislature can use that information to make the decisions we need to make in the future when making policy.”
Whatever the legislative goal, Roberson’s appearance before the committee could also draw even more public attention to his case and help him avoid execution. Whether that is true or not, it reminds us that death row inmates are still human beings, entitled to be treated with dignity and given a voice in public proceedings.
That’s exactly the kind of reminder that the most ardent supporters of the death penalty, like Abbott and Paxton, can’t bear.
Whatever the outcome of the effort to stop Roberson from telling his story, lawmakers in other states should follow what Texas lawmakers are trying to do and provide a place for death row inmates to testify when those lawmakers pass death penalty bills to consider. They and other Americans need to hear the voices of those we sentence to death, voices that are too often silenced until the moment they are allowed to speak their final words.
This article was originally published on MSNBC.com
