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

(CNN) — Death row inmate Robert Roberson is once again the subject of last-minute maneuvering as his scheduled testimony before a bipartisan group of Texas legislators Monday is shrouded in uncertainty just hours before it’s 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. It was an unprecedented gambit played 24 hours before he was to be put to death for the 2002 “shaken baby” killing of his 2-year-old daughter Nikki Curtis – a crime he and his advocates say did not occur. By Thursday evening, after a series of court battles and escalating appeals, the Texas Supreme Court had issued a temporary stay of execution.

For Roberson, it 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 is scheduled to speak Monday to lawmakers considering the lawfulness of his case – and whether it necessitates changes to a “junk science” law those in his corner feel should benefit Roberson.

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 failed to reach an agreement with the committee on the logistics of Roberson’s testimony.

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

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

But Texas prison officials will allow Roberson to testify only virtually, the attorney general’s office said in a letter to committee chairman Joe Moody Friday night, citing criminal justice department policies, the interest of public safety and Roberson’s well-being.

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

Texas prison officials would not directly address 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 for Roberson was issued.

The hearing remains on the public schedule and is expected to include 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 the earliest a new execution could be set would be next year.

How that will play out remains to be seen. Here’s what we know:

The case

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 like 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 autism spectrum disorder, which went undiagnosed until 2018.

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 under age 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.

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

“It’s the entire case, and that is Mr. Roberson’s case,” Keith Findley, professor emeritus with the University of Wisconsin Law School, testified before the Texas Committee on Criminal Jurisprudence last week. “When you have a prosecution, a conviction that rests entirely upon medical, scientific opinion, and it turns out that medical science is, at best, deeply disputed, you have a recipe for real problems.”

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 Monday is scheduled to take place before the House Committee on Criminal Jurisprudence, which includes state legislators who have championed the inmate’s case. Their subpoena calls for Roberson to “provide all testimony and information concerning the committee’s inquiry.”

Last Wednesday, the same committee held a 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 previously 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,” Findley 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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