After Roberson ruling, upcoming Court of Criminal Appeals election in the spotlight

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Usually, it’s nothing more than a trivia night factoid: Texas is one of just two states with two high courts, one for civil and one for criminal cases.

But on Thursday night, this peculiar quirk of judicial administration may have saved a man’s life, at least temporarily.

The Court of Criminal Appeals, Texas’ highest court for criminal cases, has ruled, repeatedly and definitively, that Robert Roberson should be executed for killing his 2-year-old daughter in 2002.

This week, the Texas Supreme Court, which handles civil cases, intervened and stayed the execution, after an unprecedented Hail Mary from a bipartisan group of legislators. This is, experts believe, the first time in Texas history that one high court stopped an execution that was already greenlit by another.

This legislative end-run around the judiciary is the latest chapter in a brewing power struggle between Texas’ three branches of government. Already, a vendetta from the executive branch in the form of Texas Attorney General Ken Paxton, resulted in primary challenges unseating three of the nine judges.

Outgoing judges Sharon Keller, Barbara Hervey and Michelle Slaughter were among the five who voted to allow Roberson’s execution to proceed. If even one of the incoming judges takes a different stance on the facts of Roberson’s case, it could open the door to future litigation and shift the votes in his favor. But a conservative landslide might further close off hope at a court that has voted against him repeatedly.

Roberson cannot be executed for at least 90 days after the state requests a new execution date, which won’t happen until the open legal questions are resolved. Unprecedented judicial interventions from the executive and legislative branches, as well as an unexpected disagreement between the two high courts, has thrown many things about Roberson’s situation into upheaval.

The question before the Texas Supreme Court right now is not about Roberson’s guilt or innocence, but about “the separation of powers at a high level,” Justice Evan Young wrote in the concurring opinion that held off the execution. As to the path that these legislators have taken Texas down, he warned, “we do not have clear precedent.”

Two-headed monster

Texas’ bifurcated court system dates back to the Civil War era, when splitting sacred institutions down the middle was apparently all the rage. Beleaguered by a backlog of cases, the Texas Supreme Court got an assist from a newly created Court of Appeals to hear criminal cases.

More than 150 years later, Texas’ two high courts largely operate alongside each other without conflict. But when they do run up against each other, it creates “a game of jurisdictional hot potato between us and our constitutional twin,” then-Texas Supreme Court Justice Don Willett wrote in 2011.

This latest clash between the two courts may once again spark conversations about the power balance between these two co-equals. Historically, death penalty cases have been the exclusive purview of the Court of Criminal Appeals, with the court attracting international attention around high-profile executions.

Texas has the highest per capita execution rate of any state after Oklahoma, which, notably, is the only other state that has two high courts.

“Without capital punishment, I'm not sure there's any reason to have a separate Supreme Court,” former Court of Criminal Appeals judge Elsa Alcala said in an interview. “That’s how they justify their existence.”

Executive interference

But before this week, it wasn’t the death penalty that had the Court of Criminal Appeals in the news this election season.

In 2021, the Court of Criminal Appeals ruled 8-1 against Paxton, finding that his office must get permission from county prosecutors to go after alleged cases of voter fraud. Not unlike where the Roberson case has now ended up, the issue at hand was the separation of powers — the executive branch interfering with the judicial branch by prosecuting election cases without invitation.

Undeterred by the effort to check and balance his power, Paxton vowed revenge, promising to “get rid of everybody” but the one judge who sided with him, the Tribune reported last year.

The three sitting judges up for reelection this year are all staunch conservatives with reputations for being tough on crime and strong on the death penalty. They have nearly a century of experience on the bench combined, including Keller who has served on the bench since 1994 and as presiding judge since 2000.

All three were unseated by primary challengers, two of whom say they were hand-picked by Paxton.

Gina Parker, who is running to replace Hervey, is a lawyer with no previous judicial experience who owns a dental manufacturing company. She is running against Democrat Nancy Mulder, a Dallas County felony court judge.

Lee Finley, who is running to replace Slaughter, is a criminal defense attorney who also has no judicial experience. He is running against Dallas County Criminal District Court Judge Chika Anyiam.

For Keller’s seat, Republican David Schenk says he was not recruited by Paxton. As former judge for the state’s Fifth District Court of Appeals, Schenk has twice ruled against Paxton in his felony conviction cases, and previously chaired the State Commission on Judicial Conduct. He is running against Travis County prosecutor Holly Davis, who previously worked as staff attorney for the court.

After the primary ousted all three of the sitting judges, Hervey, who had been on the bench since 2001, told the Tribune that this interference from another branch of government worried her about the future of the court.

“Darth Vader is not supposed to win the war in those movies,” she said at the time.

Legislative end-run

In 2002, 2-year-old Nikki Curtis died at a hospital in East Texas. At the time, doctors, nurses, law enforcement and, crucially, a judge, believed she had been the victim of violent child abuse from her father, Roberson.

In the 22 years since, more evidence has come out, both about Curtis’ short life and the diagnosis used to sentence Roberson to death. Texas courts have waffled on whether he should be executed or not, but each time, it has come down to the same place: The Texas Court of Criminal Appeals.

Two judges, Hervey and Keller, have been on the court the whole time this case has played out. Despite various legal mechanisms, new strategies, new evidence, new angles, ultimately, each time, a majority of the nine-judge panel has decided he must die. The most recent vote was Thursday night after Paxton’s office appealed a Travis County judge’s temporary restraining order halting the execution. A narrow majority of the Court of Criminal Appeals overrode that ruling and voted to allow the execution to proceed.

Three of those five votes came from judges who will not be on the court come January. If even one of the incoming judges views the case differently than the person they’re replacing, the 5-4 balance of opinions could potentially flip in Roberson’s favor and create new hope for future litigation in front of the court. But with two self-proclaimed Paxton allies in the running, support for the state’s position could gain more strength after January.

None of this would even be up for consideration if members of the Texas House hadn’t used their power as the legislative branch to try to throw the brakes on the judiciary. While it’s not immediately clear what future legal avenues Roberson’s team might pursue, considering how much is in flux with the court right now, Alcala said it was clear this was “not just a delay tactic for the sake of delay.”

“I think everyone involved is doing the best job they can to try to get justice in what appears to be a potentially innocent person who was convicted with junk science,” she said.

Whether this case will impact voters in these usually low-attention down-ballot races in November remains to be seen. But the stakes for Roberson are high, and the power of one judge is clear in this case already.

Earlier this month, the Court of Criminal Appeals ruled 5-4 to overturn the life sentence of a DeSoto man convicted of causing irreversible brain damage by shaking a 1-year-old. In the ruling, the court found that if the state’s experts were called to testify today, they “would be confronted with twenty years of reputable scientific studies and publications that, if graphed, continually point away from their stated positions. As a result, “it is more likely than not he would not have been convicted.”

Hervey authored that opinion, thoroughly rejecting the shaken baby premise in that case. Just a few days later, she joined four others and voted to allow Roberson’s execution to go forward.