Texas Supreme Court clears way for new execution date for Robert Roberson in 2-year-old daughter’s death

By Ashley Killough, Ed Lavandera and Dakin Andone, CNN

(CNN) — The Texas Supreme Court on Friday said the execution of a man convicted of murder in the 2002 death of his 2-year-old daughter could move forward, even as a state house committee seeks to subpoena the man for his testimony and its bipartisan members fight to spare his life.

Robert Roberson, 57, was set to be executed in October, but a state House committee, using its investigatory powers, issued a subpoena for Roberson’s testimony, which led the state Supreme Court to temporarily halt the execution so it could consider the request.

The decision Friday clears the way for a new execution date to be set by a state court judge.

Roberson’s conviction relied on allegations that his daughter, Nikki Curtis, died of shaken baby syndrome, a diagnosis his attorneys argue is wrong.

“Categorically prioritizing a legislative subpoena over a scheduled execution … would become a potent legal tool that could be wielded not just to obtain necessary testimony but to forestall an execution,” the Texas Supreme Court decision said.

Roberson’s attorney, Gretchen Sween, in a statement, asked the state to refrain from setting a new execution date given “the overwhelming new evidence of innocence.”

“The ancillary benefit to Mr. Roberson of staying his execution hopefully gives time for those with power to address a grave wrong to see what is apparent to anyone who gives the medical evidence fair consideration: his daughter Nikki’s death was a tragedy, not a crime; Robert is innocent,” said Sween, noting that even the lead detective on the case is convinced her client was “hastily and wrongly judged as guilty.”

Sween told “The Lead with Jake Tapper” Friday she has been unable to speak with Roberson about the decision.

“Now we’re back in the position where the local DA could go seek a new execution date, essentially in any moment,” she said.

The high court ruling suggested that courts had considered new evidence when they had not, Sween said. “Nobody’s looked at it.”

“If they don’t look at the new evidence and conclude that that justifies a new trial, we’re in a terrible predicament, but we’re certainly not giving up,” she told CNN.

That new evidence, Sween said, includes ”a collection of comprehensive reports from medical experts” showing Nikki “died from an undiagnosed pneumonia, both a viral pneumonia that was colonizing her lung tissue and a secondary bacterial … pneumonia that was causing the lung cells to die.”

Roberson says he is innocent. His attorneys and advocates insist the diagnosis that his daughter died from shaken baby syndrome is inaccurate.

While child abuse pediatricians remain firm on the validity of the shaken baby syndrome diagnosis, Roberson’s attorneys say there is ample evidence his daughter did not die of child abuse.

The delay in Roberson’s execution was set in motion last month when lawmakers with the Texas Committee on Criminal Jurisprudence voted to subpoena Roberson as they consider the lawfulness of his conviction.

Friday’s decision said Roberson’s testimony before the House committee could happen before the new execution date. A new date has not been set.

CNN has reached out for comment to the Anderson County District Attorney’s office, which would request a state court to set a new execution date.

Texas law requires a judge to set an execution date at least 90 days in advance, meaning the earliest Roberson could again face execution would be early next year.

“If the committee still wishes to obtain his testimony, we assume that the department can reasonably accommodate a new subpoena,” the state Supreme Court decision said.

“To the extent that an accommodation is not forthcoming, so long as a subpoena issues in a way that does not inevitably block a scheduled execution, nothing in our holding prevents the committee from pursuing judicial relief in the ordinary way to compel a witness’s testimony.”

Supporters include former detective on the case

The state Supreme Court’s stay last month halted Roberson’s execution just over an hour before his death warrant was set to expire at midnight October 17. It followed a remarkable series of legal maneuvers as the state and Roberson’s advocates fought over his fate.

In a statement Friday, state Reps. Joe Moody and Jeff Leach said delaying the execution was not their intent, and the court decision “strongly reinforced our belief that our committee can indeed obtain Mr. Roberson’s testimony and made clear that it expects the executive branch of government to accommodate us.”

Roberson would have become the first person in the US executed for a conviction that relied on an allegation of shaken baby syndrome.

While child abuse pediatricians fiercely defend the legitimacy of the diagnosis, Roberson’s advocates say the courts have yet to consider ample evidence his daughter died not of a homicide, but a variety of causes, including an illness and medicine now seen as unfit for such a sickly child.

Roberson’s attorneys have argued his due process rights were violated when the Texas Court of Criminal Appeals declined to consider additional evidence the inmate says would support his innocence claim.

Roberson’s innocence claim underscores an inherent risk of capital punishment: A potentially innocent person could be put to death. At least 200 people – including 18 in Texas – have been exonerated since 1973 after being convicted and sentenced to die, according to the Death Penalty Information Center.

In the case of another Texas inmate, Melissa Lucio, a judge on Friday said she never committed the crime. The decision came just two days before she was scheduled to be put to death. The Texas Court of Criminal Appeals, which had asked the judge to revisit the case, will now determine whether Lucio should be released.

At the time of her death, Nikki had double pneumonia that had progressed to sepsis, his attorneys 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, pointing to all these factors as explanations for her condition.

Roberson’s supporters include Brian Wharton, the former detective who oversaw the investigation into Nikki’s death, as well as more than 30 scientists and medical experts who agree with the doctors cited by the inmate’s attorneys, a bipartisan group of more than 80 Texas legislators, autism advocacy groups and author John Grisham. All have called for mercy.

‘No Texan wants an innocent man executed’

In October, the appellate court ordered a new trial for a man sentenced to 35 years in prison for his conviction for injury to a child in a case that also relied on a shaken baby syndrome argument.

Roberson’s supporters believe he, too, should benefit from this law, which “was meant exactly for cases like this one,” the committee said in a letter brief to the Texas Court of Criminal Appeals.

His attorneys are not disputing babies can and do die from being shaken. But they contend more benign explanations, including illness, can mimic the symptoms of shaking, 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.

The condition, first described in the mid-1970s, has for the past 15 or so years been considered a type of “abusive head trauma” – a broader term used to reflect actions other than shaking, like an impact to a child’s head.

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, the diagnosis has been the focus of debates in courtrooms across the country. 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.

Sween on Friday described Roberson as “an autistic father who was incapable of explaining his daughter’s complex medical condition that it took highly trained medical specialists years to figure out.”

“No Texan wants an innocent man executed,” she said in her statement.

CNN’s Ray Sanchez contributed to this report.

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