Texas Has Scheduled the Execution of an Innocent Man in One Week. Will Anyone Stop It?

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Many Americans say they support^[2] capital punishment. But we have known for a long time^[3] that the more people know about it, the less they like it.

More than 50 years ago, Supreme Court Justice Thurgood Marshall observed that^[4] the key issue in understanding public attitudes toward the death penalty is “not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available.” This information, Marshall predicted, “would surely convince average citizens that the death penalty was unwise.”

Since he made that prediction, many studies have shown that the justice was right^[5]. Also since he made that prediction, public support for capital punishment has dropped, driven in part by the widespread dissemination of information about the conviction of innocent people and racial discrimination in death sentencing.

Another important factor in explaining this change has been publicity about high-profile cases in which the flaws in the death-penalty system have been apparent for all to see. Examples include the 2004 execution of Todd Willingham^[6] and the 2011 execution of Troy Davis^[7] for crimes it seems very clear that they did not commit.

We can add to that list the ongoing case of Robert Roberson^[8], who is scheduled to be put to death in Texas on Oct. 16. Whether or not he is executed, what has happened to him is nothing short of scandalous.

Even the death penalty’s most ardent supporters should oppose his execution. If he is killed, it will only further erode public confidence in the integrity and reliability of America’s death penalty.

Roberson’s case illustrates how once a commitment to death as a punishment is in place, it can blind people to even the most egregious injustices. It creates what psychologists call confirmation bias^[9].

As Tufts University’s Raymond Nickerson notes^[10], “If one were to attempt to identify a single problematic aspect of human reasoning that deserves attention above all others, the confirmation bias would have to be among the candidates for consideration.” In cases like Roberson’s, the consequences of this bias can be deadly.

Roberson was convicted of murder^[11] in 2003 for the death of his chronically ill 2-year-old daughter Nikki. The state alleged that she was a victim of shaken baby syndrome^[12], “a serious brain injury that results from forcefully shaking an infant or a toddler.”

Right from the start, Roberson said he was innocent. But he didn’t get much of a defense. His lawyer neither questioned the shaken baby syndrome diagnosis nor pushed Roberson’s innocence claim. As the Texas Tribune reports^[13], “Medical providers and investigators at the time also viewed Roberson’s flat affect as corroborating his guilt. Roberson was diagnosed with autism in 2018.”

Since his conviction, shaken baby syndrome has been discredited^[14] in the scientific community. And the state of Texas has passed a law^[15] allowing courts to review criminal convictions based on changes in scientific evidence.

Roberson’s has followed the usual course of death penalty cases, bouncing from court to court. He has won some of those cases but lost others^[16].

He was almost put to death^[17] a year ago. But a group of state legislators intervened^[18], and a legislative committee subpoenaed him to appear at a hearing about his case and the problematic use of junk science by courts.

That led to more back-and-forth about whether Roberson could appear in person. Ken Paxton, the Texas attorney general, ordered correctional officials^[19] not to let him do so.

Roberson never testified.

On Monday, new evidence came to light suggesting^[20] that Judge Bascom Bentley, who presided over Roberson’s criminal trial, may have engaged in judicial misconduct. He gave Nikki’s grandparents permission to authorize the removal of Nikki from life support, in violation of state law designating Roberson as the only person entitled to make that decision.

This only added to the mess that has plagued Roberson’s case from the start. As his lawyers allege^[21], “No member of the Anderson County Judiciary [the county where Roberson was tried], including Judge Bentley, ever disclosed to Mr. Roberson the direct role that Judge Bentley had played in authorizing … remov[al of] Nikki from life-sustaining care when they had no legal authority to do so.”

This “new evidence,” they contend, “is material to the Judicial Misconduct claim, alleging a serious violation of Mr. Roberson’s fundamental right to a trial before an impartial tribunal—and before a tribunal that appears impartial.”

Throughout all this, the state of Texas has remained steadfast in its commitment to executing Roberson. In this case, it wants to put to death an innocent person in a case in which no crime was committed.

Nikki may have died from natural causes^[22]. Roberson’s lawyers have presented evidence from experts^[23] that his daughter “likely died from undiagnosed pneumonia, which suppressed her breathing and was exacerbated by … medications no longer prescribed to children.”

The experts say that the pneumonia “progressed to the point of sepsis … triggering her fall from bed, causing bleeding in her brain and leading to her death.”

Not surprisingly, Roberson’s case has attracted attention in the United States and abroad. Groups like the Center for Integrity in Forensic Sciences^[29] and the Autism Society of America^[30] have concluded that Roberson was wrongfully convicted and urged that his execution be stopped.

Bestselling author John Grisham, who has written a book about Roberson’s case, calls it^[31] “an ongoing tragedy.” He says, “If it now becomes a wrongful execution, it will live in infamy.”

Even after all of its misconduct and mistakes have become public knowledge, Texas is either not convinced that it should spare Roberson’s life or not bothered that another one of its death-penalty cases will “live in infamy.”

Writing in 1972, Marshall was optimistic about the workings of democratic politics and our constitutional system. What the Roberson case shows is that the justice didn’t foresee how confirmation bias would keep holdouts locked into their support of capital punishment long after it became clear that the death-penalty system was irretrievably broken.

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