What we know as the fate of Texas death row inmate Robert Roberson’s testimony before a state legislative committee is uncertain

Death row inmate Robert Roberson is once again the subject of last-minute maneuvering as his planned testimony before a bipartisan group of Texas lawmakers is shrouded in uncertainty Monday, just hours before it is set to begin.

The questions surrounding his appearance before lawmakers come days after the House Committee on Criminal Jurisprudence last Wednesday issued a subpoena for Roberson to testify about his case. The summons was an unprecedented gamble, coming 24 hours before he was to be put to death for the 2002 “shaken baby” murder of his two-year-old daughter Nikki Curtis – a crime that he and his advocates say did not happen. On Thursday evening, after a series of lawsuits and escalating appeals, the Texas Supreme Court issued a temporary stay of execution.

For Roberson, it was a godsend just as the other doors to save his life were slamming shut: his team had lost several appeals in the Texas courts, the State Board of Pardons and Paroles had declined to recommend clemency, and the U.S. Supreme Court had also refused to intervene.

Roberson will speak to lawmakers Monday about the legality of his case — and whether changes are needed to a “junk science” law that those in his corner believe Roberson should benefit from.

But as of Sunday evening it was unclear whether Roberson would appear at the hearing, his attorney, Gretchen Sween, told CNN, as the Texas Attorney General’s office and the Texas Department of Criminal Justice have so far been unable to reach an agreement to be reached with the committee. about the logistics of Roberson’s testimony.

The committee’s subpoena requires Roberson to testify in person, Sween said, and lawmakers have said they fully expect the inmate to appear at the Capitol.

Sween wants Roberson to testify in person so lawmakers and the public can fully understand how his autism affects his interactions with other people, which his advocates say was one of the factors that contributed to his conviction.

But Texas prison officials will only allow Roberson to testify virtually, the attorney general’s office said in a letter to committee chairman Joe Moody Friday evening, citing Justice Department policy, the importance of public safety and Roberson’s well-being .

“Our hands are tied. The AG represents TDCJ and is in charge while simultaneously attacking the underlying subpoena before the Texas Supreme Court. We expected that the subpoena would be honored consistent with Texas law and the commission’s intent. But there was a sleight of hand here,” Sween said in a statement to CNN.

Texas prison officials would not say directly whether Roberson would travel to Austin for the hearing or testify virtually, saying they are working with the attorney general’s office.

The attorney general’s office has not responded to multiple requests for comment since the subpoena was issued for Roberson.

The hearing remains on the public schedule and is expected to involve other witnesses.

Texas law requires a judge to set a new execution date at least 90 days in the future, and Sween previously told CNN that the earliest a new execution could take place would be next year.

How that will turn out remains to be seen. This is what we know:

The case

Roberson was convicted of capital murder in a case that hinged on allegations that his daughter died of shaken baby syndrome — a misdiagnosis, his lawyers argue, that they say has since been discredited. Child abuse pediatricians and medical organizations such as the American Academy of Pediatrics remain adamant about the legitimacy of the diagnosis.

But Roberson, his lawyers and advocates point to a number of other possible causes for Nikki’s death, citing their own medical experts: She had double pneumonia that had progressed to sepsis, they say, and she had been prescribed two medications that are now considered inappropriate. children who would have further hindered her ability to breathe. Moreover, she had fallen out of bed the night before Roberson took her to the emergency room in Palestine, Texas, and was particularly vulnerable given her illness, Roberson’s attorneys say. They point to all these factors as explanations for her condition.

Roberson took Nikki to the hospital on the morning of January 31, 2002. He told investigators he woke up during the night to find her fallen from the bed, with some blood on her lips and a bruise under her chin, police said. criminal complaint. He kept her awake for two hours to make sure she was okay, he said, but when he woke up that morning, she was unresponsive.

Doctors who treated Nikki “suspected” abuse based on her symptoms and general mindset at the time of her death, without examining her recent medical history, the inmate’s attorneys allege. And they say his behavior in the emergency room – seen as indifferent by doctors, nurses and police, who believed it as a sign of his guilt – was a manifestation of autism spectrum disorder, which went undiagnosed until 2018.

According to Brian Wharton, the former chief detective of the Palestinian Police, police never investigated explanations for Nikki’s death other than shaken baby syndrome. Guidance from medical experts combined with Roberson’s attitude led authorities to focus on Roberson as a suspect “to the exclusion of all other possibilities,” he told CNN.

The diagnosis

Roberson’s attorneys do not dispute that babies can die from being shaken. But they argue that milder explanations, including illness, can mimic the symptoms of shaken baby syndrome, and those alternative explanations must be ruled out before a medical expert testifies with certainty that the cause of death was abuse.

Shaken Baby Syndrome is accepted as a valid diagnosis by the American Academy of Pediatrics and is supported by child abuse pediatricians who spoke to CNN. Today it is more commonly referred to as a form of “abuse head trauma,” a broader term that doctors began using around 2009 to indicate that it can be caused by actions other than shaking, such as a blow to a child’s head.

Aggressive head trauma most commonly occurs when a frustrated parent or caregiver violently shakes a child and/or causes a blunt force injury, the U.S. Centers for Disease Control and Prevention and others say. It is the leading cause of child abuse deaths in children under five years old, the CDC says.

Criminal defense attorneys have also oversimplified the way doctors diagnose abuse from head trauma, pediatricians say, noting that many factors are taken into account to determine this.

Still, courts across the country have been reconsidering the role of shaken baby syndrome in convictions involving it: Since 1992, courts in at least 17 states and the U.S. military have acquitted 32 people convicted in shaken baby syndrome cases, according to the National Register of Exemptions.

Those who question the diagnosis point to research they say undermines its reliability. But within the context of the law, they are also concerned that the diagnosis appears to encompass multiple elements of a crime, including the suspect, his state of mind and the manner in which the crime was committed.

“It is the whole case, and that is Mr. Roberson’s case,” Keith Findley, professor emeritus at the University of Wisconsin Law School, testified before the Texas Committee on Criminal Jurisprudence last week. “If you are being persecuted, a belief based entirely on medical, scientific advice, and it turns out that the medical science is deeply controversial at best, then you have a recipe for real trouble.”

Child abuse pediatricians, however, fiercely defend the diagnosis.

“I don’t know what to say about the legal controversy,” Dr. Antoinette Laskey, chair of the American Academy of Pediatrics’ Council on Child Abuse and Neglect, told CNN. “This is real, it affects children, it affects families.”

The testimony

Roberson’s possible testimony will take place Monday before the House Committee on Criminal Jurisprudence, which also includes state lawmakers who have championed the inmate’s case. Their subpoena calls on Roberson to “provide all testimony and information regarding the committee’s investigation.”

Last Wednesday, the same committee held a hearing on Roberson’s case and whether he should have benefited from a Texas law commonly referred to as the “junk science writ.” The law, formally known as Section 11.073, dates back to 2013 and was intended to open a path for someone to challenge their conviction if there is new scientific evidence that was not available at the time of their trial.

Roberson’s supporters believe he should have taken advantage of this law. The Texas Court of Criminal Appeals previously issued a stay of execution in Roberson’s case in 2016, returning a claim under Article 11.073, among other things, to the trial court. The lower court ultimately ruled against Roberson, finding that he had not shown that there was new scientific evidence relevant to his case, and the appeals court later accepted these findings.

“I believe that Section 11.073 simply did not work as it should have worked in the Robert Roberson case,” Findley testified last Wednesday — a sentiment echoed by House committee members, who indicated that last week’s hearing was equally about Roberson was about finding a way to fix a law that they felt was not functioning as intended.

“Every member of this committee is surprised by the way it was applied in this particular case,” Moody, the committee chairman, said of section 11.073. “Frankly, we looked at this case in detail, expecting this law to provide relief, and that did not happen.”

“When the Legislature passes a law and finds out it’s not working as intended, it’s our job to step in and fix that law.”

CNN’s Ashley Killough and Nicole Chavez contributed to this report.

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