Robert Roberson: A Texas inmate's scheduled execution today is now in question after he was called to testify before the state board

CNN
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Unless the courts or the governor intervene, Texas is scheduled to execute death row inmate Robert Roberson on Thursday, who claims he was wrongfully convicted of abusing his 2-year-old daughter until her death.

But the status of the execution proceedings is now unclear after a Texas House committee made an extraordinary decision Wednesday night to subpoena Roberson to testify as it considers the legality of his conviction.

“This extraordinary and unprecedented maneuver reflects how seriously Texas lawmakers viewed the concerns in Mr. Roberson's case,” Robin Maher, executive director of the Death Penalty Information Center, told CNN about the decision. “They also send an urgent, public message to Governor (Greg) Abbott that they, like so many others, do not believe Mr. Roberson should be executed.”

The Texas Department of Criminal Justice has not announced whether Roberson's execution will be delayed due to the subpoena from the Texas Committee on Criminal Jurisprudence, which is asking Roberson to testify on October 21. The ministry said on Wednesday evening that it was discussing “appropriate next steps”. with the Attorney General's Office.

If executed, Roberson's lawyers say, he would be the first person in the United States executed for a conviction based on allegations of shaken baby syndrome, a misdiagnosis in Roberson's case that they say has been discredited.

While child abuse pediatricians vehemently defend the legitimacy of the diagnosis, Roberson's advocates say the courts have not yet considered sufficient evidence that his daughter, Nikki Curtis, died not of murder but of a variety of causes, including illness and medication are now considered unsuitable for such a sickly child.

The pleas of Roberson's many supporters have so far failed to halt the path to his execution, and his conviction has so far been upheld on appeal.

But his lawyers continue to try to make their case in court: They have filed a petition with the U.S. Supreme Court seeking a stay of execution, arguing his due process rights were violated when the Texas appeals court refused to admit additional evidence consider The inmate says he would support his claim of innocence.

Texas asked the Supreme Court in a motion filed Wednesday night to reject Roberson's emergency appeal, saying the arguments he made were “not worthy of the court's attention.”

Texas officials said the courts have “given Roberson the means and opportunity to make claims, gather evidence for his case and address the adverse evidence brought against him.” Just because Roberson was rejected doesn't mean that that he was denied notice or the opportunity to be heard, state officials told the Supreme Court.

“The record shows that the state’s habeas process adequately followed due process,” Texas told the Supreme Court in its brief.

Earlier Wednesday, the Texas Board of Pardons and Paroles declined to recommend a pardon after his lawyers requested that his death sentence be commuted to a lesser sentence – or that the inmate be given a 180-day reprieve to allow his appeals to be heard in court can be.

Without the parole board's recommendation, Abbott, the GOP governor, is limited to imposing a one-time, 30-day delay in execution to allow for judicial appeals. CNN has reached out to Abbott's office for comment.

Roberson's claim of innocence underscores the inherent risk of the death penalty: a potentially innocent person could be held accountable Death. According to the Death Penalty Information Center, since 1973, at least 200 people — including 18 in Texas — have been acquitted after being convicted and sentenced to death.

At the time of her death, Nikki was suffering from double pneumonia which had progressed to sepsis and was prescribed two medications which were now deemed unsuitable for children and would have further impaired her ability to breathe. What's more, she fell out of bed the night before Roberson took her to an emergency room in Palestine, Texas – and was particularly vulnerable because of her illness, Roberson's lawyers say, pointing to all of these factors as explanations for her condition.

Other factors also contributed to his conviction, they argue: The doctors who treated Nikki “suspected” abuse based on her symptoms and general mindset at the time of her death, without examining her recent medical history, the inmate's lawyers claim. And his behavior in the emergency room — which was viewed as callous by doctors, nurses and police who saw it as a sign of his guilt — was actually a manifestation of an autism spectrum disorder that went undiagnosed until 2018.

“I told my wife last week that I was ashamed. I'm ashamed that I was so focused on finding a perpetrator and convicting someone that I didn't see Robert. I didn't hear his voice,” Brian Wharton, the former detective who oversaw the investigation into Nikki's death, told state lawmakers Wednesday at a hearing on the case.

“He's an innocent man and we're on the verge of killing him for something he didn't do,” Wharton said.

Wharton is perhaps the inmate's most vocal advocate, along with Roberson's attorney Gretchen Sween. On Tuesday, the detective-turned-Methodist minister learned that the inmate had put him on his witness list should the execution go ahead.

“There's a part of me that just wants to run away from it. I don’t want to be there, I don’t want to watch it happen,” Wharton told CNN. “But it’s another moment I owe him. If he asked me to be there, I owe him a lot.”

Wharton is one of Roberson's many supporters today: more than 30 scientists and medical experts who agree with the doctors cited by the inmate's lawyers, a bipartisan group of more than 80 Texas lawmakers, autism advocacy groups and author John Grisham have all agreed Grace Called, a passionate movement that has mounted strong opposition to the execution in recent days.

Supporting the Legislature includes members of the Texas Committee on Criminal Jurisprudence, which held a hearing Wednesday highlighting Roberson's case and calling out Wharton, Sween and others who expressed doubts about the diagnosis of shaken baby syndrome.

The hearing was reportedly about Texas Article 11,073, a state law commonly referred to as “junk science writ” that was intended to give defendants the opportunity to challenge their convictions if no new scientific evidence was available at the time of their trial.

The committee voted to subpoena Roberson on Wednesday, asking him in the motion to “provide all relevant statements and information related to the committee's investigation.” Although the committee is not entirely convinced that Roberson's execution will be delayed, it is hopeful, a source with knowledge of the proceedings told CNN.

Last week, the appeals court ordered a new trial for a man sentenced to 35 years in prison for injuring a child, in a case that also relied on the “shaken baby syndrome” argument.

Roberson's supporters believe he, too, should benefit from this law, which was “designed precisely for cases like this,” the committee said in a letter to the Texas Court of Appeals.

The committee requested a stay of execution in the Roberson case while lawmakers considered making changes to it in the coming legislative session. But the appeals court on Wednesday dismissed Roberson's latest appeal on procedural grounds “without considering the merits of the claims raised.”

Republican Rep. Jeff Leach, a member of the committee, expressed hope that the governor and the parole board were listening to the hearing, “because the law that the legislature passed and our governor signed is being ignored by our courts and by all of us. “ “I’m trying to hit the pause button here to make sure it gets enforced.”

Roberson's lawyers do not dispute that babies can and do die from shaking. However, they contend that more benign explanations, including illness, can mimic the symptoms of tremors, and these 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 is supported by child abuse pediatricians who spoke to CNN. First described in the mid-1970s, the condition has been considered a type of “abusive head trauma” for about 15 years – a broader term that describes actions other than shaking, such as hitting a child on the head.

Criminal defense attorneys have also oversimplified the way doctors diagnose abusive head trauma, child abuse pediatricians say, pointing out that many factors are taken into account in the determination.

Still, the diagnosis has been at the center of debates in courtrooms across the country. According to the National Registry of Exonerations, courts in at least 17 states and the U.S. Army have exonerated 32 people convicted in shaken baby syndrome cases since 1992.

Child abuse pediatricians like Dr. Antoinette Laskey, chairwoman of the Council on Child Abuse and Neglect of the American Academy of Pediatrics, disputes these statistics. She pointed to a 2021 study that found only 3% of all convictions in shaken baby syndrome cases between 2008 and 2018 were overturned, and only 1% of those were overturned based on medical evidence. However, the thoroughness of this study has been questioned.

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