What’s next in the complex case of Texas death row inmate Robert Roberson

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By Dakin Andone, CNN

(CNN) — A week ago, Robert Roberson was running out of time.

On Wednesday, however, the Texas House Committee on Criminal Jurisprudence issued a an extraordinary subpoena seeking Roberson’s testimony, a maneuver that ultimately caused the execution to be halted.

With his execution looming last Thursday, the 57-year-old Texas death row inmate watched as his attorneys’ legal arguments were rejected in the courts and his pleas for clemency disregarded, as the state parole board declined to recommend he receive a lesser sentence or a reprieve.

That subpoena also prompted a court battle that will unfold in coming weeks. Committee members have expressed hope the subpoena will be honored, but Roberson did not appear at Monday’s hearing. The Texas Attorney General’s Office has tried to limit the inmate to testifying virtually, a non-starter for the committee and Roberson’s attorneys, who want him to appear in person – even if it means lawmakers travel to Roberson to hear his testimony.

The case remains fluid, and if the last week has been any indicator, it could continue to evolve dramatically. Here’s what could happen next:

The execution

Roberson was sentenced to death for the 2002 murder of his 2-year-old daughter, Nikki Curtis, based on a diagnosis of shaken baby syndrome.

But he says he is innocent. Roberson’s attorneys and advocates say the diagnosis is discredited – and in Roberson’s case, they say, there are a myriad of other possible explanations for Nikki’s death.

Child abuse pediatricians fiercely defend the validity of shaken baby syndrome, which today is considered a subset of abusive head trauma.

The most important consequence of the committee’s subpoena is that it has, for now, effectively reset the clock on his execution.

The ensuing court battle over the subpoena culminated with a temporary injunction late last Wednesday by the state Supreme Court, preventing the Texas Department of Criminal Justice from putting Roberson to death.

By midnight Thursday, Roberson’s death warrant dictating the date of the execution had expired, and a spokesperson for the department confirmed a judge would need to order a new date. Texas law requires a judge set an execution date at least 90 days in advance, meaning the earliest Roberson could again face execution would be early next year.

The state has appeared to acknowledge this in court records. The office of Republican Gov. Greg Abbott, in a letter submitted to the state Supreme Court, said the committee’s subpoena “had the effect, both legally and factually, of granting (at least) a 90-day reprieve.”

The court battle

In the meantime, the bipartisan legislative committee remains locked in litigation with the office of Attorney General Ken Paxton, which is representing the Texas Department of Criminal Justice. Both are part of the executive branch under Abbott.

The criminal jurisprudence committee did not intend to “create a constitutional crisis” by issuing its subpoena, Rep. Joe Moody, the committee chair, said Monday. But the attorney general contends the committee has put the state on “the brink” of one while arguing for the Texas Supreme Court to reconsider its ruling halting the execution – and to throw out the committee’s initial petition to stop the execution so Roberson could testify.

The temporary stay aside, the committee’s initial petition and the attorney general’s request to revisit it both remain under consideration, the Texas Supreme Court said in an order Sunday.

That order also laid out a several deadlines for the parties to file briefs before the court, beginning next Monday, October 28, and ending November 8.

The committee asked the Texas Supreme Court to halt the execution after the attorney general’s office sought to overturn a temporary restraining order granted by a lower court. In its initial petition, the committee argued Roberson’s testimony was key to its examination of a state law, Article 11.073 – more commonly referred to as the state’s “junk science” law.

The statute was intended to provide a path for post-conviction appeals when new, relevant science emerges that was unavailable at the time of a defendant’s trial. Roberson’s supporters feel he should benefit from this law, pointing to a widening dispute over the legitimacy of shaken baby syndrome.

The courts, however, have so far rejected claims stemming from Article 11.073 – a fact that has become a focus for the legislative committee. Its members have said they are considering whether his case illustrates a need for changes to the law. No capital defendant has ever benefited from it, the committee said Monday.

The attorney general’s office opposed the committee’s request and has argued the Texas Supreme Court – which has ultimate authority over civil matters in the state – did not have jurisdiction to intervene in matters related to Roberson’s case because it stems from a crime.

His testimony

More immediately, the committee has signaled it will continue to seek Roberson’s testimony, and that it will insist on hearing it in person – even if the lawmakers are forced to travel to Livingston, Texas, where Roberson resides on death row.

Over the weekend, the attorney general informed the committee the state criminal justice department would make the inmate available to testify over Zoom. But Roberson’s attorney, Gretchen Sween, objected, noting her client has autism, another factor she and others believe contributed to his wrongful conviction.

Her client has “overwhelming challenges” communicating and interpreting social cues, Sween said Monday. Roberson appearing in person would allow lawmakers to see the “palpable impairments” that might have influenced his trial.

Additionally, communicating via Zoom would be daunting for the inmate, who had never used the software before a court hearing last week. When Sween asked him about the experience, she said he told her, “I saw a bunch of heads, but I couldn’t hear much.”

In his concluding remarks at Monday’s hearing, Chair Moody said the committee was working through the logistics of Roberson’s testimony, “perhaps by the committee going to Robert instead of him coming to us, which is something we’re fleshing out right now.”

“Our expectation is still that we are going to hear from Robert,” Moody said, “and that’s going to be the next step for this committee.”

CNN’s Ed Lavandera, Cindy Von Quednow and Elizabeth Wolfe contributed to this report.

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