AUSTIN, Texas — The Texas Supreme Court on Friday removed a temporary block on the execution of death row inmate Robert Roberson.
The block was in place as the state's highest court weighed arguments on whether a subpoena from Texas lawmakers could halt an execution.
The decision comes a little less than a month after a bipartisan group of lawmakers on the Texas House Committee on Criminal Jurisprudence tried to delay the execution by issuing a subpoena for him to testify in front of them after his execution date.
The last ditch effort took place one day before he was scheduled to be executed on Oct. 17, setting off a last-minute back-and-forth battle of subpoenas and hearings that halted the process and kept Roberson alive.
"If we had not done that, I firmly believe that Mr. Roberson would not be alive right now and that the state might have perpetrated one of the gravest miscarriages of justice in the history of our state," State Rep. Brian Harrison, a member of the committee, said. "That would call into question the integrity of our entire criminal justice system."
Friday's ruling determined the House committee's subpoena cannot stop the execution of a death row inmate.
"Under these circumstances, the committee's authority to compel testimony does not include the power to override the scheduled legal process leading to an execution," Justice Evan Young wrote.
The court said by issuing that subpoena, the committee intruded on the authority of the other branches of government.
"It was a brand new way of handling this issue in front of the legislature," Austin-based criminal defense attorney Sam Bassett said. "What the Supreme Court may have been commenting on in their ruling is they were imagining a situation in the future where a legislator could issue a subpoena for somebody about to be executed to continue to block executions in the future."
In the ruling, the court said the committee could issue another subpoena to hear from Roberson, just as long as it does not interfere with his future execution date.
"Essentially, what they're saying is the legislature can issue subpoenas for prisoners on certain issues. However, they can't do it with such timing as to effectuate or block an execution," Bassett said.
The Texas Supreme Court is a civil court jurisdiction and does not rule on criminal cases, so Friday's ruling was only on the subpoena power of the Legislature and does not address the merits of whether Roberson is guilty or innocent, the validity of Roberson's conviction or the evidence in the case – all of which is left up to the criminal courts.
"In large part, I thought it was very fair and thoughtful legal reasoning, but I disagree with a few parts a little bit," Harrison said. "I was very grateful to see the Supreme Court unequivocally declare and find that we had the absolute authority to do what we did and issue the subpoena. It was a lawful subpoena. It was a valid subpoena."
Harrison said he does not believe state lawmakers could have issued the subpoena sooner than they did because they did not have the information and understanding to do so until the day before the execution.
"There's no way we could have known that our laws were going to be so flagrantly violated and disregarded by the courts until at the very last minute when the Criminal Court of Appeals came out with their decision and the Board of Pardons and Parole came out with its decision," Harrison said. "We didn't know until we did it that it was going to be something that we needed to contemplate."
In 2003, Roberson was convicted and sentenced to death for the murder of his 2-year-old daughter, Nikki. During Roberson's trial, the medical examiner and a pediatrician claimed Nikki's death was due to the "shaken baby hypothesis," which has to do with severe brain injury caused by shaking or violent impact on a child's head.
Texas lawmakers believe the state's shaken baby syndrome diagnosis should lead to a review of the case due to the "Junk Science Law" in Texas, which allows prisoners to challenge possible wrong convictions. The committee is concerned courts have ignored the 2013 law, which was created because of cases involving flawed scientific evidence, like cases that involved infant trauma. Texas became the first state to pass such a law.
Prosecutors believe that Roberson killed his daughter by shaking her violently, but Roberson's lawyers argue the child likely died from complications related to pneumonia.
"There's been an absolute miscarriage of justice, and Mr. Roberson has never had due process," Harrison said. "He's never had a fair trial. He needs a fair trial."
Since the Texas Supreme Court cleared the way for the state to execute Roberson, it is now up to the Anderson County District Attorney Allyson Mitchell to file a motion asking for a new execution date to be set by the Anderson County Trial Court. When a court does set a new execution date for the state to carry out what is known as a death warrant, it has to be at least 90 days from that date.
"It probably buys him at least three or four months, but maybe as long as a year or more," Bassett said.
Bassett said the Hail Mary by state lawmakers would allow Roberson and his lawyers to continue to explore all legal avenues and look for another way to have a criminal court review this case.
Gretchen Sween, an attorney for Roberson, said they hope a court will hear new evidence in this case. They are asking the state to refrain from setting a new execution date.
"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," Sween said. "His daughter Nikki's death was a tragedy, not a crime; Robert is innocent. Given the overwhelming new evidence of innocence, we ask the State of Texas to refrain from setting a new execution date."
In a statement released on Friday, the two lawmakers spearheading the effort on the Texas House Committee on Criminal Jurisprudence – State Rep. Jeff Leach (R-McKinney) and State Rep. Joe Moody (D-El Paso) – said it was never their specific intent to delay the execution, but they still intend to take testimony from Robertson.
Harrison said they are in discussions about making that happen.
"We just keep moving forward in discussions with the executive branch on how exactly we go about attaining Mister Roberson in front of our committee to provide his testimony because it was very clear in today's reasoning that we have the absolute authority to do this," Harrison said. "We expect him to come in and testify to the committee."
Bassett said as long as it is not imminently before a future execution date, the executive branch will likely have to comply with that.
"Given the Supreme Court's ruling, they should be allowed to have him testify," Bassett said. "I don't know what mechanism will be used, if he'll be brought in person, or if he'll be able to testify remotely via Zoom or some similar program, but they will be able to do that."
With lawmakers returning to the Texas Capitol for the 89th legislative session in January, Harrison said he hopes they are able to get Roberson's testimony sooner rather than late – not just because of his uncertain future but also to allow lawmakers to consider changing or clarifying laws like the Junk Science Law.
"With so many major issues that Texans want us to address that, quite frankly, we shouldn't be having to spend so much time and resources for something that our current laws were supposed to prevent from ever having happened in the first place," Harrison said.
While the ruling does clear the way for a new execution date, Gov. Greg Abbott could still grant a 30-day reprieve. It is worth noting that Abbott did not do so back in October, and he criticized state lawmakers for overstepping their authority by issuing the subpoena for Roberson to testify; the parole board also voted not to give Roberson clemency.
Texas courts, including the Texas Court of Criminal Appeals, have repeatedly rejected efforts by Roberson and his lawyers to appeal his conviction, citing new evidence.
If the execution does move forward, Roberson would be the first person in U.S. history executed based on the shaken baby syndrome hypothesis.