Texas Supreme Court clears way for new execution date for Robert Roberson in 2-year-old daughter’s death

By Ashley Killough, Ed Lavandera and Dakin Andone, CNN

(CNN) — The Texas Supreme Court on Friday said the execution of a man convicted of murder in the 2002 death of his 2-year-old daughter could move forward, even as a state house committee seeks to subpoena the man for his testimony as its bipartisan members fight to spare his life.

Robert Roberson, 57, was set to be executed in October, but a state House committee, using its investigatory powers, issued a subpoena for Roberson’s testimony, which led the state Supreme Court to temporarily halt the execution so it could consider the request.

The decision Friday clears the way for a new execution date to be set by a state court judge.

Roberson’s conviction relied on allegations that his daughter, Nikki Curtis, died of shaken baby syndrome, a diagnosis his attorneys argue is wrong.

“Categorically prioritizing a legislative subpoena over a scheduled execution … would become a potent legal tool that could be wielded not just to obtain necessary testimony but to forestall an execution,” the Texas Supreme Court decision said.

Roberson’s attorney, Gretchen Sween, in a statement, asked the state to refrain from setting a new execution date given “the overwhelming new evidence of innocence.”

“The ancillary benefit to Mr. Roberson of staying his execution hopefully gives time for those with power to address a grave wrong to see what is apparent to anyone who gives the medical evidence fair consideration: his daughter Nikki’s death was a tragedy, not a crime; Robert is innocent,” said Sween, noting that even the lead detective on the case is convinced her client was “hastily and wrongly judged as guilty.”

Roberson says he is innocent. His attorneys and advocates insist the diagnosis that his daughter died from shaken baby syndrome is inaccurate.

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 did not die of child abuse.

The delay in Roberson’s execution was set in motion last month when lawmakers with the Texas Committee on Criminal Jurisprudence voted to subpoena Roberson as they consider the lawfulness of his conviction.

Friday’s decision said Roberson’s testimony before the House committee could happen before the new execution date. A new date has not been set.

“If the committee still wishes to obtain his testimony, we assume that the department can reasonably accommodate a new subpoena,” the state Supreme Court decision said.

“To the extent that an accommodation is not forthcoming, so long as a subpoena issues in a way that does not inevitably block a scheduled execution, nothing in our holding prevents the committee from pursuing judicial relief in the ordinary way to compel a witness’s testimony.”

The state Supreme Court’s stay last month halted Roberson’s execution just over an hour before his death warrant was set to expire at midnight October 17. It followed a remarkable series of legal maneuvers as the state and Roberson’s advocates fought over his fate.

In a statement Friday, state Reps. Joe Moody and Jeff Leach said delaying the execution was not their intent, and the court decision “strongly reinforced our belief that our committee can indeed obtain Mr. Roberson’s testimony and made clear that it expects the executive branch of government to accommodate us.”

Roberson would have become the first person in the US executed for a conviction that relied on an allegation of shaken baby syndrome.

While child abuse pediatricians fiercely defend the legitimacy of the diagnosis, Roberson’s advocates say the courts have yet to consider ample evidence his daughter died not of a homicide, but a variety of causes, including an illness and medicine now seen as unfit for such a sickly child.

Roberson’s attorneys have argued 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.

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

This is a developing story and will be updated.

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