Robert Roberson, the Texas death row inmate whose execution in a strongly disputed shaken baby murder case was postponed last week, is scheduled to testify on Monday before a committee of the State House.
A subpoena for his testimony, issued in a novel last-minute legal maneuver, halted his execution just before it was set to be carried out on Thursday evening. The Texas Supreme Court ruled that by issuing the subpoena, a bipartisan group of Texas House members had raised legal questions about the separation of powers that needed to be resolved.
The Texas House and Mr. Roberson’s lawyers had hoped he would appear in person before the Legislature’s committee on jurisprudence. But over the weekend, the office of the Texas attorney general, Ken Paxton, representing the Department of Criminal Justice, stepped in and said that, “in the interest of public safety,” Mr. Roberson would only be made available by video conference from prison.
The Texas Supreme Court ruled on Sunday that as long as Mr. Roberson was able to give testimony in response to the subpoena, it would not involve itself in the dispute over how he would testify. So Mr. Roberson’s appearance seemed likely to take place by video conference, aides to the Texas House said, though negotiations over the matter were continuing.
Mr. Roberson’s lawyers have argued that his autism, which was diagnosed after the murder conviction, would make any attempt to judge his credibility by video conference “profoundly limited.” And they said that having him appear remotely without his lawyers by his side would deprive Mr. Roberson of access to counsel during the questioning.
Mr. Roberson’s case has drawn extensive national attention. A broad range of supporters — including a majority of the Republican-controlled Texas House, the novelist John Grisham and the detective who helped convict Mr. Roberson — have raised questions about the conviction, which relied in part on a finding of shaken baby syndrome.
His lawyers have argued that the death of his 2-year-old daughter Nikki in 2002 was explained by pneumonia and the effect of medications that could affect her breathing. And they have said that Mr. Roberson’s autism, undiagnosed at the time, figured in his conviction as well, because investigators took his absence of apparent emotion as his daughter was dying as evidence of his guilt.
The state has stood by the conviction, saying the girl’s death was caused not just by shaking but also by blunt-force injuries. They have argued that any doubts raised about the reliability of shaken baby syndrome diagnoses in the two decades since Mr. Roberson was convicted do not change the evidence in his case.
Mr. Roberson has had his appeals denied by the state’s top criminal court, the Court of Criminal Appeals, and his request for clemency was rejected by the state’s Board of Pardons and Paroles. Gov. Greg Abbott, who has the power to grant a temporary 30-day reprieve to stop executions, did not step in as the execution loomed on Thursday.
The U.S. Supreme Court declined to take the case. Justice Sonia Sotomayor, in a statement agreeing with the court’s decision on legal grounds, said that she nevertheless believed that there were significant questions about the application of evidence about shaken baby syndrome in Mr. Roberson’s case. She said the execution should be halted by Mr. Abbott to prevent a “miscarriage of justice from occurring.”
Instead, it was members of the Texas House, outraged at what they said was the injustice of his case, who took the unusual step of calling Mr. Roberson to testify, and thus forestalling the execution.
But the maneuver does not reopen Mr. Roberson’s case. The Texas Supreme Court said that it had intervened only in response to questions about the respective powers of the legislative and the executive branches of Texas government in the context of a subpoena and a pending execution.
The courts were not, for now at least, reconsidering the conviction, any new evidence or expert testimony in Mr. Roberson’s case.
Still, it was the specifics of his case that Mr. Roberson was expected to discuss during his testimony on Monday. The lawmakers who intervened, led by Representative Joe Moody, an El Paso Democrat, and Representative Jeff Leach, a Dallas-area Republican, have said that they needed to hear from Mr. Roberson in order to consider the adequacy of state laws.
Texas was among the first states to pass a so-called junk science law, which allows for convictions to be reconsidered on the basis of changes to scientific understanding of evidence.
Mr. Roberson’s lawyers, and the House members, have said that the law should be applied to Mr. Roberson’s case because the medical symptoms that had been used to diagnose shaken baby syndrome in his dead daughter were no longer considered sufficient to support such a diagnosis.
The Court of Criminal Appeals applied the junk science law to a different shaken baby case this month, requiring a new trial in that case. But in Mr. Roberson’s case, the court concluded that the law did not apply, in part because the record did not show that his conviction was based on evidence that his daughter had died from shaking alone.
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