Texas committee approves subpoena for death row inmate ahead of his execution

By Dakin Andone and Ashley Killough, CNN

(CNN) — Just a day before his scheduled execution, death row inmate Robert Roberson has been subpoenaed to testify before a Texas House committee that is reconsidering the lawfulness of his conviction for the murder of his 2-year-old daughter – a crime advocates say did not happen.

The Texas Committee on Criminal Jurisprudence has scheduled the hearing for October 21, but the state’s Department of Criminal Justice has not announced whether Robertson’s execution will be delayed on Thursday.

A spokesperson for the department said it will consult with the attorney general’s office on the “appropriate next steps.”

CNN has reached out to Gov. Greg Abbott’s office for comment.

The subpoena calls for Roberson to “provide all relevant testimony and information concerning the committee’s inquiry.” The chair can also issue additional subpoenas for relevant testimony.

The committee is not totally confident that Roberson’s execution will be delayed, but they are hopeful, the source said.

Seven representatives voted in favor of the motion, which was filed by Rep. Brian Harrison and seconded by Rep. Jeff Leach, both Republicans. Shortly after the committee approved the motion, Roberson’s attorney was served the subpoena at the state Capitol, a source with knowledge of the proceedings told CNN.

“This work is hard, but it is the hard work that is always worth doing,” Moody said upon approving the subpoena.

In a post on X, Harrison said he was “proud” to bring up the motion and “grateful” for the support of his colleagues.

“It’s a historic, unprecedented step. We’ll see what happens next,” Leach told CNN.

Calls to spare Roberson’s life were growing before the committee’s decision Wednesday.

While Roberson’s supporters continue to fight to spare his life, their efforts to stop his execution have so far been rejected. On Wednesday, the Texas Board of Pardons and Paroles declined to recommend clemency in Roberson’s case after his attorneys requested his death sentence be commuted to a lesser penalty – or that the inmate be granted a 180-day reprieve to allow time for his appeals to be argued in court.

If he’s put to death by lethal injection Thursday evening, Roberson’s attorneys say he would be the first person in the US executed based on a conviction that relied on an allegation of shaken baby syndrome – a misdiagnosis in Roberson’s case, they argue, and one they say has been discredited.

Without the recommendation of the parole board, GOP Gov. Greg Abbott is limited to issuing a one-time, 30-day reprieve.

“We urge Governor Abbott to grant a reprieve of 30 days,” Roberson’s attorney, Gretchen Sween said Wednesday, “to allow litigation to continue and have a court hear the overwhelming new medical and scientific evidence that shows Robert Roberson’s chronically ill, two-year-old daughter, Nikki, died of natural and accidental causes, not abuse.”

While child abuse pediatricians remain firm on the validity of the shaken baby syndrome diagnosis, Roberson’s attorneys say there is ample evidence his daughter, Nikki Curtis, did not die of child abuse.

At the time of her death, she had double pneumonia that had progressed to sepsis, and she had been prescribed two medications now seen as inappropriate for children that would have further hindered her ability to breathe, they argue, citing medical experts. Additionally, she had fallen off a bed, and was particularly vulnerable in her sickly condition, Roberson’s attorneys say.

Other factors, too, contributed to his conviction, they argue. 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. His behavior in the emergency room – viewed as uncaring by doctors, nurses and the police, who believed it a sign of his guilt – was actually a manifestation of autism spectrum disorder, which went undiagnosed until 2018.

“Very early on, Robert was the focus of everything to the exclusion of any other possibilities,” said Brian Wharton, the former Palestine, Texas, detective who led what he now believes was a too-narrowly focused investigation into Nikki’s death. He has since joined Roberson’s supporters in fighting to spare his life.

Roberson’s innocence claim underscores an inherent risk of capital punishment: a potentially innocent person could be put to death. At least 200 people – 18 in Texas – have been exonerated since 1973 after being convicted and sentenced to die, according to the Death Penalty Information Center.

The appeals court denied the inmate’s latest appeal on Wednesday. That court last week ordered a new trial for a man sentenced to 35 years in prison for his conviction of injury to a child in a case that also relied on a shaken baby argument.

Roberson’s attorneys have filed a request for a stay of execution with the US Supreme Court, arguing his due process rights were violated when the Texas Court of Criminal Appeals declined to consider additional evidence the inmate says would support his innocence claim.

Texas urged the Supreme Court in a filing Wednesday evening to deny Roberson’s emergency appeal, claiming that the arguments he has raised are “unworthy of the court’s attention.”

The courts, Texas officials said, “gave Roberson the means and the opportunity to make claims, marshal evidence in support of his cause, and address the adverse evidence adduced against him.” Just because Roberson was denied, the state officials told the Supreme Court, “does not mean that he was denied notice or an opportunity to be heard.”

“The record shows that the state habeas proceedings adequately complied with due process,” Texas told the Supreme Court in its brief.

State legislators voice support

In the meantime, Roberson’s many supporters are taking their own steps to call attention to his case in hopes of pressing the state into halting the execution.

The Texas Committee on Criminal Jurisprudence is holding a hearing Wednesday where it will hear testimony “related to capital punishment” and a Texas law – commonly referred to as the “junk science writ” – which opened a path for someone to challenge their conviction if there is new scientific evidence unavailable at the time of their trial.

While Roberson’s name is not mentioned in a notice about the hearing, his advocates say he should benefit from this law – and a member of the committee, Rep. Jeff Leach, a Republican from Collins County, told reporters Tuesday the hearing would “shine a light” on Roberson’s case “for all 31 million Texans to hear and watch and to see.”

“And we’re hopeful that by Thursday evening, we’re able to secure that pause button in this case,” said Leach, who supports the death penalty but has emerged as a key critic of its administration in cases featuring wrongful conviction claims.

The committee – made up of both Republicans and Democrats – has also urged the Texas Court of Criminal Appeals to halt the execution, citing the “junk science” law. Committee members want Roberson to be granted a stay while lawmakers consider amendments to the “junk science” law, they wrote in a letter brief filed before the court.

“It is beyond dispute that medical evidence presented at Mr. Roberson’s trial in 2003 is inconsistent with modern scientific principles,” the lawmakers wrote.

“We believe it would be a stain on the conscience of the State of Texas for an execution to proceed while efforts are underway to remedy deficiencies in how the law was applied to this case.”

A bipartisan group of more than 80 Texas legislators has supported Roberson’s case, and his request for clemency. Rep. Joe Moody, chair of the criminal jurisprudence committee, said on X last week the state needed to “pump the brakes before this stains Texas justice for generations.”

The author John Grisham – a board member of the Innocence Project, which has backed Roberson’s claim – also called for mercy Tuesday in an op-ed for the Washington Post.

“The evidence is assembled and available to the Texas authorities, but no one with the power to stop Roberson’s execution is paying attention,” Grisham wrote. “The courts slammed all the doors on the basis of technicalities, and even politicians’ pleas have been ignored.”

Diagnosis focus of courtroom debate

Roberson’s attorneys are not disputing babies can and do die from being shaken. But they contend more benign explanations, including illness, can mimic the symptoms of shaking, and those alternative explanations should 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 supported by child abuse pediatricians who spoke with CNN. The condition, first described in the mid-1970s, has for the past 15 or so years been considered a type of “abusive head trauma” – a broader term used to reflect actions other than shaking, like an impact to a child’s head.

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

“The conclusion is simply (Nikki) was a victim of abusive head trauma. Unequivocally,” Dr. Sandeep Narang, a child abuse pediatrician and a lawyer, told CNN after he said he was asked by a supporter of Roberson’s defense to review trial testimony in the case.

Still, the diagnosis has been the focus of debates in courtrooms across the country. 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.

Child abuse pediatricians like Dr. Antoinette Laskey, chair of the American Academy of Pediatrics’ Council on Child Abuse and Neglect, dispute these statistics. She pointed to a 2021 paper that found just 3% of all convictions in shaken baby syndrome cases between 2008 and 2018 were overturned, and only 1% of them were overturned because of medical evidence.

“I don’t know what to say about the legal controversy,” Laskey told CNN of the courtroom debate (She did not speak to Roberson’s case). “This is real, it affects children, it affects families … I want to help children; I don’t want to diagnose abuse: That’s a bad day.”

Last week, however, the Texas Court of Criminal Appeals ordered a new trial for a man sentenced to 35 years in prison for his conviction of injury to a child in a case that also relied on a shaken baby syndrome argument. In its argument, the court wrote “scientific knowledge has evolved regarding SBS.”

CNN’s Ed Lavandera, John Fritze, Sandee Lamotte and Cindy Von Quednow contributed to this report.

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