On Oct. 21, Robert Roberson was scheduled to do what no death row inmate has ever done. He was supposed to give testimony before a committee of the Texas Legislature that is investigating his case.
This would have been a remarkable moment in death penalty history. It would have offered hope for Roberson himself. It also would have marked a moment when the humanity of someone convicted of a capital crime was recognized by treating them as a credible witness in a public proceeding.
That explains why officials in Texas, led by Gov. Greg Abbott and Attorney General Ken Paxton, have stepped in to prevent Roberson from testifying. As Paxton said on Wednesday: “A few legislators have grossly interfered with the justice system by disregarding the separation of powers outlined in the State Constitution. They have 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 be executed and in doing so silence his voice. They should not be allowed to get away with their plan.
Allowing a death row inmate to testify before a legislative committee marks a sharp break from legal history.
They should follow the law and honor the subpoena as the Texas Supreme Ccourt did last week. Citizens of Texas, whatever their views about 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 something entirely different when one of them is asked to lend their voice to an official consideration of a pressing matter of public policy.
Even before this month’s events, Roberson’s case was already unprecedented in many ways. In 2002, Roberson was convicted and sentenced to death for killing his daughter, Nikki. The crucial evidence against him was provided by an expert who testified that Nikki had died from “shaken baby syndrome.”
If Roberson is executed he would be the first person in the United States put to death on the basis of a shaken baby syndrome diagnosis. But since Roberson was convicted, shaken baby syndrome has fallen out of favor among many in the medical community. Doubts have been raised about it by judges and legislators in several states.
Long before the Roberson case came to public prominence, similar doubts were raised in Texas. In 2013, the state passed what is colloquially called 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 them is no longer credible.” And “at the time, it was hailed by the Legislature as a uniquely future-proof solution to wrongful convictions based on faulty science.”
Texas, hardly a paradigm of criminal justice liberalism, became the first state in the nation to adopt such a law, which “clarified that judges could consider changes in the scientific value of already-available evidence as a basis for granting post-conviction relief even after all direct appeals are exhausted. “
Nonetheless, courts have repeatedly refused to allow Roberson, who has claimed he is innocent, from taking advantage of that law through what his supporters say is “deliberate misinterpretation.”
Roberson, who was scheduled to be executed on Oct. 17, was saved when a group of Texas legislators made ingenious use of an ordinary legislative power: the power to subpoena a witness to appear before legislative committees. It amounted to what I have called “a legislative reprieve.”
Having a death row inmate testify before a legislative committee would mark a sharp break from a long history in which such testimony would not have been regarded as credible. As Robert Popper, a former state prosecutor in New York, wrote, “For at least three hundred years, between the sixteenth and nineteenth centuries, even the defendant in a criminal case was not permitted to testify in his own behalf.”
This same bar applied to people who had been convicted of a crime. The famous legal commentator William Blackstone put it this way: “All witnesses, of whatever religion or country, that have the use of their reason, are to be received and examined, except such as are infamous or such as are interested in the event of the cause.”
In this country, prisoners and people sentenced to death were among such “infamous” persons. Throughout the 19th century, American courts made that clear. It is not an accident that prison guards refer to a person awaiting execution as a “dead man walking.” In the 1871 case Ruffin v Commonwealth, a Virginia judge put it succinctly: “He has as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the State. He is civiliter mortuus; and his estate, if he has any, is administered like that of a dead man.” The judge went on to explain: “The bill of rights is a declaration of general principles to govern a society of freemen, and not of convicted felons and men civilly dead. Such men … are the slaves of the State undergoing punishment for heinous crimes committed against the laws of the land.” Courts no longer refer to prisoners or death row inmates as slaves of the state or as civilly dead. They can now give testimony in court. And in many capital cases, prisoners are often offered inducements to testify against co-defendants. But it is not an accident that prison guards refer to a person awaiting execution as a “dead man walking.” In Roberson’s case, his testimony before the House Criminal Jurisprudence Committee would help lawmakers investigate whether courts in the state are properly adhering to the “junk science” law. State Rep. Joe Moody, the committee’s chair, explained that the committee issued a subpoena to Roberson so he could “tell his story, what his life was like prior to this, what the investigation looked like through his lens. … [T]he legislature can use that information to make the decisions that we need to make going forward in making policy.” Whatever its legislative purpose, Roberson’s appearance before the committee may also bring even more public attention to his case and help keep him from being executed. Whether it does so or not, it is a reminder that death row inmates are still human beings, entitled to be treated with dignity, and given a voice in public proceedings. That is precisely the kind of reminder that capital punishment’s most ardent supporters, like Abbott and Paxton, cannot abide. Whatever the outcome of the effort to stop Roberson from telling his story, legislatures in other states should follow what the Texas legislators are trying to do and provide a place for death row inmates to testify when those legislatures consider bills about capital punishment. They and other Americans need to hear the voices of those we condemn to death, voices that are too often silenced until the moment when they are allowed the give their last words.
Austin Sarat
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. The views expressed here do not represent Amherst College. 
