Texas lawmakers hear testimony supporting death row inmate Robert Roberson – but despite subpoena, he does not appear

By Dakin Andone, Ed Lavandera, Cindy Von Quednow and Elizabeth Wolfe, CNN

(CNN) — Death row inmate Robert Roberson did not appear Monday to testify before the Texas House Committee on Criminal Jurisprudence – in person or otherwise – despite a subpoena lawmakers issued last week that halted his execution for a crime he and his attorneys say did not occur.

Monday’s hearing stretched late into the night as lawmakers at the Capitol in Austin heard testimony on the inmate’s case and the shaken baby syndrome diagnosis his murder conviction was built upon – but Roberson himself was absent.

While the Texas attorney general’s office has sought to limit Roberson to testifying virtually, lawmakers and Roberson’s attorney insist it would not be appropriate because Roberson has autism and faces significant challenges communicating, even when speaking in person.

Committee members concluded the hearing by reiterating they still expect to hear Roberson’s testimony in person. Rep. Joe Moody said the lawmakers are “working out in-person testimony collaboratively, perhaps by the committee going to Robert instead of him coming to us.”

Earlier Monday, Rep. Jeff Leach told CNN’s Erica Hill that, if necessary, “our committee will take a field trip … to interview him in a public hearing there at the prison.”

Roberson was scheduled to be executed last Thursday for the 2002 killing of his 2-year-old daughter Nikki Curtis – who allegedly died from shaken baby syndrome. But the execution was halted after the Committee on Criminal Jurisprudence issued a subpoena for Roberson to testify about his case, an unprecedented gambit that led to a partial stay of execution from the Texas Supreme Court.

Lawmakers intended to hear from Roberson as they considered the lawfulness of his case, and whether it necessitates changes to a “junk science” law those in his corner feel should benefit Roberson. However, members of the committee, the inmate’s attorneys and the office of Texas Attorney General Ken Paxton have clashed over the logistics of his testimony.

A slate of witnesses testified at Monday’s hearing, including attorneys who have worked on shaken baby cases, a juror in Roberson’s trial and TV host Dr. Phil McGraw, who has interviewed Roberson.

Both Roberson’s attorney and a clinical psychologist testified that his autism – which was undiagnosed at the time of his trial – prevented him from advocating for himself to law enforcement and may have also made him seem uncaring in front of witnesses and jurors.

Appearing virtually would also be incredibly daunting for Roberson, who has never communicated by Zoom and only saw it in use for the first time last week, his attorney, Gretchen Sween, said.

Roberson has “overwhelming challenges” communicating and interpreting social cues, and appearing before lawmakers would allow them to see he has “palpable impairments” that may have influenced his trial, she said.

Even as the hearing unfolded, the attorney general and the committee were filing dueling motions with the Texas Supreme Court over its decision to temporarily halt the execution. Republican Gov. Greg Abbott submitted a letter brief in support of the attorney general’s filings, arguing the committee’s subpoena had violated the state constitution’s separation-of-powers clause, effectively usurping clemency power that is reserved for his office.

The brief notes Roberson was convicted more than two decades ago, and that if the Legislature wanted to seek his testimony, it had ample time do so. “Only at the eleventh hour, when the Constitution empowers the Governor to make the last move, did the House Committee decide to violate the Separation-of-Powers Clause,” the brief says.

In an order Sunday, the court said it was still considering arguments from both sides and set several deadlines for filing over the next several weeks.

Texas law requires a judge to set a new execution date at least 90 days in the future, and Roberson’s attorney previously told CNN the earliest a new execution could be set would be next year.

The testimony

Monday’s hearing featured a parade of advocates, medical experts and even a former juror who testified that Roberson’s trial hinged on a now-disputed allegation of shaken baby syndrome and also lacked key context that the father has autism – a diagnosis that wasn’t made until 2018.

Natalie Montfort, a psychologist who works with adults who have autism, reviewed the case and testified that the impact of Roberson’s disability on his conviction “cannot be overstated.”

“So much of the evidence that the state presented against Mr. Roberson at trial was about manifestations of his then-undiagnosed autism. The jury heard witness after witness say Mr. Roberson was odd, uncaring and unemotional when he brought his daughter to the hospital trying to get her help,” Montfort said.

She noted testimony from a nurse who found it unusual that Roberson dressed his daughter before taking her to the hospital, which Montfort said was likely due to his strong reliance on routine. Witnesses also found it odd that he did not cry or seem visibly distressed, which Montfort said was also due to his autism.

“His reactions were misconstrued as evidence of guilt. The jury was told to believe he was callous and remorseless,” Montfort said.

Sween, Roberson’s attorney, argued witness accounts painting him as uncaring should be considered “false testimony” because they didn’t know he has autism.

Terre Compton, one of 12 jurors in Roberson’s trial, said the jury’s decision was based on what was presented to them about shaken baby syndrome, and nothing else. She testified if other evidence or explanations had been presented, she would have found Roberson not guilty, and she now believes he did not kill his daughter.

“I could not live with myself thinking that I had a hand in putting an innocent man to death,” Compton said.

In an interview with CNN after her testimony, Compton said learning about Roberson’s potential innocence has weighed on her so much that it would move her to tears.

“I don’t think it really hit me so hard until they set his death date,” Compton said. “We as jurors took what they told us to be the truth. … I feel like we were taken very much advantage of. I think they lied to us in a lot of ways.”

Sween insists ample evidence and expert testimony has emerged since Roberson’s trial that contradicts the allegation that his daughter died from abuse. Instead, she said, her symptoms were more likely the result of days of illness leading up to her death, as well as hospital treatment that may have left her with bruises, such as intubation and emergency resuscitation.

McGraw, who interviewed Roberson earlier this month for his show “Dr. Phil,” is among those questioning the shaken baby diagnosis and advocating for a retrial.

He noted the term “shaken baby” was brought up at least 47 times during the 2003 trial, despite evidence Roberson’s daughter was very ill at the time of her death.

“I am 100% convinced that we’re facing a miscarriage of justice here,” McGraw testified. “I don’t think he’s had due process, I don’t think he’s had a fair trial, and I think he should.”

The case

For Roberson, the committee’s subpoena last week was a godsend, coming just as the other doors to save his life slammed 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 US Supreme Court had also declined to intervene.

Roberson was convicted of capital murder in a case that relied on allegations his daughter died of shaken baby syndrome – a misdiagnosis, his attorneys claim, and one they say has since been discredited. Child abuse pediatricians and medical organizations such as the American Academy of Pediatrics remain firm on the legitimacy of the diagnosis.

But Roberson, his attorneys and advocates point to a variety 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 now seen as inappropriate for children that would have further hindered her ability to breathe. Additionally, the night before Roberson brought her to a Palestine, Texas, emergency room, she had fallen off a bed, and was particularly vulnerable given her illness, Roberson’s attorneys say. They point to all these factors as explanations for her condition.

Roberson brought Nikki to the hospital on the morning of January 31, 2002. He told investigators he had woken in the night to find she’d fallen off the bed, with some blood on her lips and a bruise under her chin, according to the criminal complaint. He kept her up for two hours to make sure she was OK, he said, but when he woke that morning, she was unresponsive.

Doctors treating Nikki presumed abuse based on her symptoms and common thinking at the time of her death without exploring her recent medical history, the inmate’s attorneys claim. And they say his behavior in the emergency room – viewed as uncaring by doctors, nurses and the police, who believed it a sign of his guilt – was a manifestation of his then-diagnosed autism spectrum disorder.

Indeed, police never explored explanations for Nikki’s death other than shaken baby syndrome, according to Brian Wharton, the former lead detective of the Palestine police. The guidance of medical experts paired with Roberson’s demeanor led authorities to focus on Roberson as a suspect “to the exclusion of any other possibilities,” he has told CNN.

The diagnosis

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

Shaken baby syndrome is accepted as a valid diagnosis by the American Academy of Pediatrics and supported by child abuse pediatricians who spoke with CNN. Today, it is more commonly referred to as a type of “abusive head trauma,” a broader term doctors began to use around 2009 to reflect it can be caused by actions other than shaking, like an impact to a child’s head.

Abusive head trauma generally occurs when a frustrated parent or caregiver violently shakes a child and/or causes a blunt impact injury, the US Centers for Disease Control and Prevention and others say. It is the leading cause of child abuse deaths in children younger than 5, the CDC says.

Criminal defense lawyers also have oversimplified how doctors diagnose abusive head trauma, child abuse pediatricians say, noting many factors are considered to determine it.

Still, courts across the country have been reconsidering the role shaken baby syndrome plays in convictions that rely upon it: Since 1992, courts in at least 17 states and the US Army have exonerated 32 people convicted in shaken baby syndrome cases, according to the National Registry of Exonerations.

The 2013 law

Last Wednesday, the criminal jurisprudence committee held another hearing about 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 Article 11.073, dates to 2013 and was meant to open a path for someone to challenge their conviction if there is new scientific evidence that was unavailable at the time of their trial.

Roberson’s advocates feel he should have benefited from this law. The Texas Court of Criminal Appeals issued a stay of execution in Roberson’s case in 2016, sending a claim under Article 11.073 (among others) back to the trial court. The lower court ultimately ruled against Roberson, finding he had not shown 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 in the Robert Roberson case,” Keith Findley, professor emeritus with the University of Wisconsin Law School, testified last Wednesday – a sentiment echoed by members of the House committee, who signaled last week’s hearing was as much about Roberson as it was about finding a way to fix a law they felt had failed to operate as intended.

“Every member of this committee has been surprised by how it has been applied in this particular case,” Moody, the committee chair, said of Article 11.073. “Quite frankly, we’ve reviewed this case in detail, fully expected that this law would provide relief, and that has not happened.”

“When the Legislature passes a law and finds out that it’s not working the way that it was intended to, it is incumbent upon us to step in and make that law right.”

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

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