The Issue Of Impartiality: 6th Amendment Considerations in the Debate Over the Constitutionality of Capital Punishment

On November 15, 2024, the Texas Supreme Court paved the way for the execution of Robert Leslie Roberson III. In 2003, Roberson, a neurodivergent man, was convicted on murder charges stemming from the shaken baby syndrome death of his 2-year-old daughter. The court’s ruling followed an eleventh-hour stay of execution issued by the Texas House of Representatives, which subpoenaed Roberson in a final bid to delay his execution. In recent weeks, Roberson’s case has attracted a litany of media attention and spurred a dramatic effort to secure Roberson a new trial due to the controversial science underlying his conviction. Though widely accepted within the pediatric community, biomechanical experts have long questioned the legitimacy of shaken baby syndrome diagnoses. Mr. Roberson’s life now depends on Article 11.073 of the Texas Code of Criminal Procedure. Known as the “junk science writ,” the statute presents an unprecedented legal avenue “allowing prisoners to challenge potential wrongful convictions by showing that changes in the field of forensic science…seriously undermined the integrity of the criminal trials resulting in their convictions.”

The junk science writ offers the final remaining avenue for Roberson’s legal defense. However, the case demonstrates an often-overlooked issue with capital prosecutions involving neurodivergent defendants. Roberson was diagnosed with Autism Spectrum Disorder in 2018, nearly 16 years after his original conviction and after several rounds of legal appeals. In the aftermath of his daughter’s death, medical examiners and law enforcement investigators repeatedly cited Roberson’s “flat affect” and “non-typical expressions” as corroboration of his guilt. According to Haley Moss, one of the most prominent openly autistic attorneys in the United States, such behaviors are common in defendants who are on the spectrum, as they are “more likely to commit faux pas, to not properly read a social situation or figure out how to effectively interact with it, or in general be uncomfortable because of external stimuli.” Moss argues that supposedly impartial juries are often subconsciously “biased against the neurodivergent” because of these behaviors.

Whereas appeals of capital convictions have historically challenged the inclusion or exclusion of specific pieces of evidence or even the broader constitutionality of the death penalty under the 8th Amendment’s abolition of “cruel and unusual punishments,” cases involving neurodivergent defendants present additional constitutional considerations. The 6th Amendment of the U.S. Constitution guarantees the right to a fair trial “by an impartial jury.” While most neurodivergent defendants are competent enough to stand trial in criminal cases, it is challenging to ensure that juries do not extend subconscious biases toward neurodivergent behaviors in a manner that compromises the rendering of an impartial judgment. Indeed, Moss suggests straightforward remedies such as explicit jury instructions and careful exploration of potential biases during jury selection generally eliminate biases toward neurodivergent defendants. However, unlike other criminal trials, capital cases can involve unique behavioral considerations where isolating bias becomes more problematic, if not impossible.

Under Section 19.03 of the Texas Penal Code, capital murder is the only felony offense eligible for the death penalty. With the exception of capital offenses involving juveniles, prosecutors may seek the death penalty under specific circumstances, including the murder of public officials, murder for hire, and the murder of children under the age of 10. In the event of a conviction, it is ultimately up to the jury to decide between capital punishment and life imprisonment. While specific procedures differ among states, sentencing guidelines in the State of Texas require juries to render a unanimous sentence based on three guiding questions: whether the defendant poses a future danger to society, whether the defendant intended to kill or anticipated the death of the deceased, and whether sufficient mitigating circumstances exist to warrant life imprisonment over capital punishment. Compared to the relatively straightforward nature of the first two sentencing guidelines, what constitutes mitigating circumstances is far more vague. Tex. Code of Criminal Procedure § 37.071 provides that “evidence may be presented by the state and the defendant…as to any matter that the court deems relevant.” Among these guidelines, lack of remorse has proven to be the most frequently cited consideration by American juries when imposing the death penalty. Since neurodivergent defendants often exhibit behaviors and reactions that differ from those of neurotypical individuals, judges and juries have historically demonstrated a subconscious bias against these defendants based on perceptions of their motivations.

In 2002, the United States Supreme Court’s ruling in Atkins v. Virginia cited adjacent concerns, concluding that the Constitution places “substantive restriction[s]” on the State’s power to take the life of individuals with certain intellectual disabilities. Specifically, Justice Breyer reasoned that the death penalty constituted an excessive punishment for such defendants under the 8th Amendment, owed to their diminished culpability. The Atkins ruling ultimately expanded definitions of cognitive disabilities beyond “subaverage intellectual function” to include significant limitations in adaptive skills and “diminished capacities…to communicate” with counsel. Moreover, in addition to finding capital punishment to be an excessive penalty for individuals with intellectual limitations, the majority opinion cited concerns over communicative difficulties that could undermine the ability of the accused to receive a fair trial, especially their capacity to communicate effectively with counsel. Despite the comparable communicative constraints in capital cases involving neurodivergent individuals, the Supreme Court limited its ruling to defendants with impaired intellectual capacity, not divergent intellectual capacity.

Like defendants with intellectual disabilities, neurodivergent defendants disproportionately face the prospect of inadequate counsel, subconscious bias from judges and juries, and excessive sentences. Whereas the Supreme Court correctly identified the “cruel and unusual” nature of capital punishment in cases involving individuals with intellectual disabilities under the 8th Amendment, the court has repeatedly failed to address the exceptional behavioral considerations that make it nearly impossible for judges and juries to remain impartial in capital cases involving neurodivergent defendants. Given the uniquely subjective judgments required in these cases, capital punishment is inherently irreconcilable under the 6th Amendment.

While recognition of these grave constitutional violations is desperately needed, it has become clear that the Roberson case will not produce a landmark federal ruling in favor of neurodivergent defendants. On October 17, 2024, the United States Supreme Court denied Roberson’s request for a writ of certiorari due to the lack of federal statutes at issue. In a statement, Justice Sotomayor denounced Roberson’s potential execution as a “miscarriage of justice” and urged the Texas Board of Pardons and Paroles to reconsider the evidence underlying the 2002 conviction. Whether Robert Leslie Roberson III lives or dies depends on Texas’ untested and unprecedented junk science writ statute. Though the prospect of a new trial offers a sliver of hope, the harsh reality remains that the State of Texas is set to execute a potentially innocent man convicted of questionable charges owed in part to the defendant’s autism.

Edited by Maura Mulholland