Robert Roberson, the convicted man whose execution was halted Thursday night in an unprecedented legal move by Texas lawmakers, is expected to appear in person at a legislative hearing in Austin on Monday, his legal representatives said.
Roberson, who would have become the first person in the U.S. to be executed for a “shaken baby” death, narrowly avoided the execution chamber after lawmakers secured a temporary restraining order from a district judge with just hours to go that halted the execution.
The lawmakers, members of a House committee, issued a subpoena late Wednesday night for Roberson to testify in his case involving a 2013 “junk science” law that allows Texas inmates to potentially challenge convictions based on advances in forensic science. The subpoena was issued to give Roberson, who has bipartisan support, more time.
Roberson, 57, has maintained his innocence in the 2002 death of his 2-year-old daughter Nikki. At the time, doctors and law enforcement quickly concluded that she had been killed by a violent shaking attack, leading to his conviction at trial, but Roberson’s defense says new insights into so-called shaken baby syndrome show that other medical conditions can be factors in a child’s death, as they believe was the case with Nikki.
The attorney general’s office quickly appealed the district judge’s temporary order to the state’s highest criminal court, which agreed to allow Roberson’s execution. But lawmakers filed their case with the Texas Supreme Court late Thursday night, as the hours ticked away before midnight — when Roberson’s death sentence was set to expire.
The Supreme Court, which currently consists of nine Republican-elected justices, ultimately agreed to a stay or halt of the execution, though it did not specify for how long, and ordered the lower court to move quickly to resolve a separation of powers issue.
A spokesman for the state Department of Criminal Justice said Friday that the agency would comply with the subpoena, without commenting on the logistics of Roberson’s possible in-person appearance before the Commission on Criminal Justice. Lawmakers have also suggested he could appear via video.
Rep. Brian Harrison, a Republican who helped file the motion to subpoena Roberson, acknowledged Friday that while the execution was blocked, several issues remain.
“We’re in new and uncharted territory,” Harrison said. “We’re not in a day-to-day situation. We’re in an hour-to-hour, minute-to-minute situation.”
Brian Wice, a Houston attorney who specializes in appeals and post-conviction litigation, called the legal maneuvers to halt the execution “extraordinary” because the state Supreme Court, a court of last resort for civil cases and with limited criminal jurisdiction, had to intervene.
He said it would be up to the attorney general’s office to seek another death sentence after Roberson testifies Monday, but the execution could be further delayed if the hearing results in another legal filing with merit or if Gov. Greg Abbott agrees to a 30-day stay. Abbott has not publicly commented on what, if anything, he plans to do.
On Thursday, the U.S. Supreme Court declined to intervene.
“In general, Mr. Roberson is out of legal options,” Wice said. “At this point, the doors to the courthouse are essentially locked.”
But Harrison said he is hopeful: “I want justice, but executing an innocent man is not that.”