(CNN) – A week ago, Robert Roberson was running out of time.
However, on Wednesday, the Texas House Criminal Jurisprudence Committee issued an extraordinary summons to solicit Roberson’s testimony, a maneuver that ultimately caused a stay of execution.
Faced with imminent execution last Thursday, the 57-year-old Texas death row inmate saw his attorneys’ legal arguments rejected in court and his pleas for clemency ignored as the state’s parole board refused to recommend that a lesser sentence or a pardon be imposed.
The subpoena also led to a court battle that will play out in the coming weeks. Commission members have expressed hope that the subpoena will be carried out, but Roberson did not appear at the hearing on Monday. The Texas Attorney General’s Office has attempted to limit the inmate’s appearance to virtual testimony, which is not an option for the Commission and Roberson’s lawyers, who want him to appear in person, even if this means that legislators travel to Roberson to listen to his testimony.
The case remains fluid, and if the last week has been any indicator, it could continue to evolve dramatically. Here’s what could happen next:
Roberson was sentenced to death for the 2002 murder of his 2-year-old daughter, Nikki Curtis, based on a diagnosis of shaken baby syndrome.
But he says he’s innocent. Roberson’s attorneys and defenders say the diagnosis is discredited and that, in Roberson’s case, there are many other possible explanations for Nikki’s death.
Pediatricians specializing in child abuse fiercely defend the validity of shaken baby syndromewhich today is considered a subset of the abusive head trauma.
The most important consequence of the Commission’s summons is that, for now, the clock on its execution is reset.
The court battle that followed the subpoena culminated last Wednesday with a precautionary measure of the state supreme courtwhich prevented the Texas Department of Criminal Justice from executing Roberson.
At midnight Thursday, Roberson’s execution order dictating his execution date was set to expire, and a department spokesperson confirmed that a judge would have to order a new date. Texas law requires a judge to set an execution date with at least 90 days in advancemeaning Roberson could be executed early next year.
The state appears to have acknowledged this in court records. Republican Gov. Greg Abbott’s office, in a letter to the state Supreme Court, said the Commission’s subpoena “had the effect, both legally and factually, of granting (at least) a 90-day reprieve.”
Meanwhile, the bipartisan legislative committee remains locked in litigation with Attorney General Ken Paxton’s office, which represents the Texas Department of Criminal Justice. Both are part of the executive branch under Abbott.
The Criminal Jurisprudence Commission had no intention to “create a constitutional crisis” by issuing its subpoena, Rep. Joe Moody, the commission’s chairman, said Monday. However, the attorney general maintains that the Commission has put the state “on the brink” of a crisis, while advocating that the Texas Supreme Court reconsider its decision to halt the execution and dismiss the Commission’s initial petition to halt execution so Roberson could testify.
Aside from the temporary suspension, the commission’s initial petition and the attorney general’s request that it be reconsidered remain under review, the Texas Supreme Court said in an order Sunday.
That order also establishes several deadlines for the parties to present briefs before the Court, starting next Monday, October 28 and until November 8.
The Commission asked the Texas Supreme Court to halt the execution after the Attorney General’s Office attempted to overturn a temporary restraining order granted by a lower court. In its initial petition, the Commission argued that Roberson’s testimony was key to its examination of a state law, Section 11.073, more commonly known as the state’s “junk science” law.
The purpose of the law was to provide an avenue for post-conviction appeals when relevant new scientific data emerges that were not available at the time of the defendant’s trial. Roberson’s supporters believe he should benefit from this law, pointing to the growing controversy over the legitimacy of shaken baby syndrome.
The courts, however, have so far rejected claims arising from Article 11,073, a fact that has become the focus of the legislative commission. Its members have said they are studying whether his case illustrates the need to change the law. No death penalty defendant has ever benefited from it, the Commission said Monday.
The attorney general’s office opposed the Commission’s request and has argued that the Texas Supreme Court – which has ultimate authority over civil matters in the state – did not have jurisdiction to intervene in matters related to Roberson’s case because stems from a crime.
More immediately, the Commission said it will continue to seek Roberson’s testimony and insist on hearing it in person, even if lawmakers are forced to travel to Livingston, Texas, where Roberson resides on death row.
Over the weekend, the attorney general informed the Commission that the state Department of Criminal Justice would make the inmate available to testify via Zoom. But Roberson’s attorney, Gretchen Sween, objected, noting that her client has autism, another factor she and others believe contributed to his wrongful conviction.
His client has “enormous difficulties” communicating and interpreting social cues, Sween said Monday. Roberson’s appearance in person would allow lawmakers to see the “palpable impediments” that could have influenced his trial.
Additionally, communicating via Zoom would be daunting for the inmate, who had never used the software before a court hearing last week. When Sween asked him about the experience, he said he told her, “I saw a lot of heads, but I couldn’t hear much.”
In his closing remarks at Monday’s hearing, Chairman Moody said the Commission was working on the logistics of Roberson’s testimony, “perhaps by the Commission going to Robert instead of him coming to us, which is something we are developing at this time.”
“Our expectation remains that we are going to listen to Robert,” Moody said, “and that is going to be the next step for this commission.”
–CNN’s Ed Lavandera, Cindy Von Quednow and Elizabeth Wolfe contributed to this report.
