Death row inmate Robert Roberson failed to testify before the Texas House Committee on Criminal Jurisprudence on Monday — in person or otherwise — despite a subpoena lawmakers issued last week that blocked his execution for a crime he and his attorneys say did not occur.
Monday’s hearing stretched late into the night, as lawmakers at the Capitol in Austin heard testimony about the inmate’s case and the shaken baby syndrome diagnosis that inspired his murder conviction — but Roberson himself was absent.
While the Texas attorney general’s office has sought to restrict Roberson to testifying virtually, lawmakers and Roberson’s attorney insisted that would not be appropriate because Roberson has autism and has significant communication issues, even when speaking in person.
Committee members concluded the hearing by reiterating that they still expect to hear Roberson’s testimony in person. Rep. Joe Moody said lawmakers are “working together on personal testimony, perhaps having the committee go to Robert instead of him coming to us.”
Earlier Monday, Rep. Jeff Leach told CNN’s Erica Hill that if necessary, “our committee will take a field trip … to interview him in a public hearing there in prison.”
Roberson was scheduled to be executed last Thursday for the 2002 murder of his 2-year-old daughter Nikki Curtis — who reportedly died of shaken baby syndrome. But the execution was halted after the House Judiciary Committee issued a subpoena for Roberson to testify about his case, an unprecedented move that led to a partial stay of the execution by the Texas Supreme Court.
Lawmakers had planned to hear from Roberson as they considered the legality of his case, and whether it requires changes to a “junk science” law that those in his corner believe should benefit Roberson. However, members of the committee, the inmate’s lawyers and the office of Texas Attorney General Ken Paxton have clashed over the logistics of his testimony.
A group of witnesses testified at Monday’s hearing, including attorneys who have worked on shaken baby cases, a juror in Roberson’s trial and TV host Dr. Phil McGraw, who interviewed Roberson.
Both Roberson’s attorney and a clinical psychologist testified that his autism — which was undiagnosed at the time of his trial — prevented him from advocating for himself to police and may have made him appear indifferent to witnesses and jurors.
Appearing virtually would also be incredibly daunting for Roberson, who has never communicated via Zoom and only saw it in use for the first time last week, said his attorney, Gretchen Sween.
Roberson faces “overwhelming challenges” communicating and interpreting social cues, and appearing before lawmakers would allow them to see that he has “tangible limitations” that may have affected his trial, she said.
Even as the hearing unfolded, the attorney general and the commission filed conflicting motions with the Texas Supreme Court over the decision to temporarily halt the execution. Republican Gov. Greg Abbott filed a brief supporting the attorney general’s submissions, arguing that the commission’s subpoena violated the state Constitution’s separation of powers clause and effectively usurped the clemency power reserved for his office.
The letter notes that Roberson was convicted more than two decades ago, and that if the Legislature wanted to call his testimony, it had ample time to do so. “Only at the last minute, when the Constitution gives the governor the authority to make the final move, did the House committee decide to violate the separation of powers clause,” the letter said.
In an order issued Sunday, the court said it was still considering both sides’ arguments and set several deadlines for filing in the coming weeks.
Texas law requires a judge to set a new execution date at least 90 days in the future, and Roberson’s attorney previously told CNN the earliest possible new execution would be next year.
The testimony
Monday’s hearing was attended by a parade of attorneys, medical experts and even a former juror who testified that Roberson’s trial hinged on a now-disputed charge of shaken baby syndrome and also missed the key context that the father has autism — a diagnosis made in 2018.
Natalie Montfort, a psychologist who works with adults with autism, reviewed the case and testified that the impact of Roberson’s disability on his conviction “cannot be overstated.”
“So much of the evidence the state presented against Mr. Roberson at trial involved manifestations of his then-undiagnosed autism. The jury heard witness after witness say that Mr. Roberson was strange, uncaring and emotionless when he took his daughter to the hospital to help her,” Montfort said.
She noted testimony from a nurse who found it unusual for Roberson to dress his daughter before taking her to the hospital, which Montfort said was likely due to his heavy reliance on routine. Witnesses also found it odd that he did not cry or appear visibly upset, which Montfort also attributed to his autism.
“His reactions were misinterpreted as evidence of guilt. The jury was told to believe he was callous and unforgiving,” Montfort said.
Sween, Roberson’s attorney, argued that witness statements that portrayed him as uncaring should be considered “false testimony” because they did not know he had autism.
Terre Compton, one of the 12 jurors in Roberson’s trial, said the jury’s decision was based on what they were told about shaken baby syndrome, nothing else. She testified that if other evidence or statements had been presented, she would not have found Roberson guilty, and she now believes he did not kill his daughter.
“I couldn’t live with myself if I thought I had a hand in putting an innocent man to death,” Compton said.
In an interview with CNN after her testimony, Compton said hearing Roberson’s possible innocence hit her so hard it brought tears to her eyes.
“I don’t think it really hit me that hard until they set the date of his death,” Compton said. “We as jurors took what they told us as the truth. … I feel like we were very abused. I think they lied to us in a lot of ways.”
Sween maintains that since Roberson’s trial, ample evidence and expert testimony have emerged to contradict the claim that his daughter died from abuse. Instead, she said, her symptoms were more likely the result of days of illness leading up to her death, as well as hospital treatments that may have caused bruising, such as intubation and emergency CPR.
McGraw, who interviewed Roberson earlier this month on his “Dr. Phil” show, is among those who question the diagnosis of the shaken baby and are calling for a new trial.
He noted that the term “shaken baby” was used at least 47 times during the 2003 trial, despite evidence that Roberson’s daughter was very ill at the time of her death.
“I am 100 percent convinced that we have a miscarriage of justice here,” McGraw testified. “I don’t think he had a fair trial, I don’t think he had a fair trial, and I think he should have.”
The case
For Roberson, the commission’s subpoena last week was a godsend, just as other doors to saving his life were closing: His team had lost several appeals in Texas courts, the state’s Board of Pardons and Paroles had declined to recommend clemency, and the U.S. Supreme Court had also declined to intervene.
Roberson was convicted of first-degree murder in a case based on allegations that his daughter died of shaken baby syndrome — a misdiagnosis, his lawyers argue, and one they say has since been discredited. Pediatricians who focus on child abuse and medical organizations like the American Academy of Pediatrics continue to cling to the legitimacy of the diagnosis.
But Roberson, his lawyers 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 considered inappropriate for children that would have further hampered her ability to breathe. In addition, she had fallen off a 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. They point to all of these factors as explanations for her condition.
Roberson took Nikki to the hospital on the morning of Jan. 31, 2002. He told investigators he woke up during the night to find her fallen off the bed, with blood on her lips and a bruise under her chin, the lawsuit says. He kept her awake for two hours to make sure she was OK, he said, but when he woke up that morning, she was unresponsive.
Doctors who treated Nikki suspected abuse based on her symptoms and general thoughts at the time of her death, without examining her recent medical history, the prisoner’s attorneys allege. And they say his behavior in the emergency room — seen as indifferent by doctors, nurses and police, who took it as a sign of his guilt — was a manifestation of his then-diagnosed autism spectrum disorder.
According to Brian Wharton, the former chief investigator for the Palestine police, police never investigated any other explanation for Nikki’s death other than shaken baby syndrome. The guidance from medical experts, combined with Roberson’s behavior, led authorities to zero in on Roberson as a suspect “to the exclusion of all other possibilities,” he told .
The Diagnosis
Roberson’s attorneys do not dispute that babies can die from being shaken. But they argue that more innocent explanations, including illness, can mimic the symptoms of shaken baby syndrome, and that those alternative explanations must be ruled out before a medical expert can testify with certainty that the cause of death was abuse.
Roberson took Nikki to the hospital on the morning of Jan. 31, 2002. He told investigators that he woke up during the night to find her fallen off the bed, with blood on her lips and a bruise under her chin, the lawsuit says. He kept her awake for two hours to make sure she was OK, he said, but when he woke up that morning, she was unresponsive.
Doctors who treated Nikki suspected abuse based on her symptoms and general thoughts at the time of her death, without examining her recent medical history, the prisoner’s attorneys allege. And they say his behavior in the emergency room — seen as indifferent by doctors, nurses and police, who took it as a sign of his guilt — was a manifestation of his then-diagnosed autism spectrum disorder.
According to Brian Wharton, the former chief investigator for the Palestinian police, police never investigated any other explanation for Nikki’s death other than shaken baby syndrome. The medical experts’ guidance, combined with Roberson’s behavior, led authorities to consider Roberson a suspect “to the exclusion of all other possibilities,” he told .
The Diagnosis
Roberson’s attorneys do not dispute that babies can die from being shaken. But they argue that more innocent explanations, including illness, can mimic the symptoms of shaken baby syndrome, and that those alternative explanations must be ruled out before a medical expert can testify with certainty that the cause of death was abuse.
Roberson’s lawyers argue that he should have taken advantage of the law. The Texas Court of Criminal Appeals issued a stay of execution in Roberson’s case in 2016, sending a claim under Section 11.073 (among other things) back to the district court. The lower court ultimately ruled against Roberson, saying he had failed to show that there was new scientific evidence relevant to his case, and the appeals court later accepted those findings.
“I believe that Section 11.073 simply did not work the way it was supposed to work in Robert Roberson’s case,” Keith Findley, a professor emeritus at the University of Wisconsin Law School, testified Wednesday — a sentiment echoed by members of the House committee, who indicated that last week’s hearing was as much about Roberson as it was about finding a way to fix a law they felt was not working as intended.
“Every member of this committee is surprised by the way it was applied in this particular case,” Moody, the committee chairman, said of Section 11.073. “Frankly, we studied this case in great detail and expected this law to provide relief, but it didn’t.”
“When the Legislature passes a law and finds that it doesn’t work as intended, it is our duty to step in and correct that law right.