Texas Supreme Court declines AG’s request to reverse delaying Roberson execution

The Texas Supreme Court declined a request Sunday from the state attorney general to reconsider its unprecedented order staying the execution of Robert Roberson III, ensuring the man on death row will testify before a House Committee on Monday.

The Thursday stay, which was issued hours after Roberson was scheduled to be executed, came after the House Committee on Criminal Jurisprudence issued a subpoena calling Roberson to testify about how the state’s 2013 “junk science” law allowing people to challenge convictions with new science was applied in his case.

In the Sunday order, the state Supreme Court did not rule on a dispute between the attorney general’s office and lawmakers: whether Roberson will testify in person or via teleconference. Roberson’s attorneys argue that testifying virtually would “profoundly” limit the committee’s ability to assess his credibility, while the attorneys general’s office says bringing him to the Capitol in Austin presents “myriad security and logistical concerns.”

The state Supreme Court punted the separation of powers concerns raised by the attorney general, setting filing deadlines for all the parties to make their case in the coming weeks.

In a 24-page petition filed on behalf of the Texas Department of Criminal Justice, the attorney general’s office had said the House committee’s subpoena was “defective on its face” and that the state Supreme Court — which handles civil matters — lacks jurisdiction in the case.

The high court’s Thursday order “flouts” the separation of powers and pushed Texas to the “brink of a constitutional crisis,” an attorney with the attorney general’s office said in the filing.

State Reps. Jeff Leach, R-Plano, and Joe Moody, D-El Paso, responded Sunday night on behalf of the House of Representatives. They argued the attorney general’s office already conceded the legitimacy of the subpoena in an earlier hearing and that this case highlights the “interdependence” of the branches of government, but does not breach their separate powers.

During the Travis County hearing Thursday, Assistant Attorney General Ed Marshall said the case was not a “shaken baby” case and argued the Court of Criminal Appeals had exclusive jurisdiction.

During the hearing, state District Judge Jessica Mangrum asked Marshall whether the subpoena from lawmakers for Roberson’s testimony was valid.

“Yes, your honor. As far as I could tell,” Marshall said.

Mangrum halted the execution of Roberson on Thursday afternoon so the death row inmate could comply with the subpoena. The judge signed a temporary restraining order a half hour before he was scheduled to be put to death, throwing the execution into question.

That order was later shot down by the Texas Court of Criminal Appeals, before the state Supreme Court stepped in and halted the execution at about 9:40 p.m. Thursday.

Paxton’s petition requested a decision from the court prior to noon Monday, when Roberson is scheduled to testify, and said Roberson will not appear in person to deliver testimony.

Spokespeople for TDCJ did not immediately respond to requests for comment Saturday evening.

Roberson, 57, was convicted of capital murder and sentenced to death in 2003 for the death his 2-year-old daughter, Nikki. He has maintained his innocence through more than two decades on death row.

Part of Roberson’s conviction was based on the “shaken baby syndrome” theory, which prosecutors partially used to explain Nikki’s fatal injuries. Shaken baby syndrome has been disputed in the years since Roberson’s conviction, but Paxton argues the theory was not a central factor in Roberson’s conviction.

In 2013, Texas passed a “junk science” law, which allowed for people convicted on scientific theories later disputed to have their cases re-examined. Roberson was previously scheduled to be executed in 2016, but this was delayed so his case could be re-examined. However, his appeal failed, leading to his execution being scheduled for Thursday.

The subpoena came after the House Committee on Criminal Jurisprudence listened to hours of testimony Wednesday from people familiar with the case, including the Anderson County district attorney, Roberson’s lawyer and the detective who investigated the case and now believes Roberson is innocent.

In the petition, Paxton argued shaken baby syndrome was not the crux of the state’s case against Roberson. Paxton said in the petition that Nikki was brought to the emergency room with “extensive bruising” to multiple parts of her body, and that an autopsy ruled she died from “blunt force head injuries” and not shaking.

Gretchen Sween, Roberson’s attorney, argued during her testimony before the House that the injuries Nikki sustained were in part due to a two-day hospital stay, in which a pressure monitor was inserted into her skull in an attempt to alleviate brain bleeding. She stated that the jury in Roberson’s case was misled to believe that Nikki’s condition after her hospital stay was the same as when she was initially admitted.

In the House response, lawmakers said the attorney general’s filing is about “the underlying criminal case, objections to the form of the subpoena, and a doomsday slippery-slope argument,” rather than the “laser-like focus” on separation of powers that the Texas Supreme Court said it expected.

Paxton said the court’s order reassigned to the legislative branch the power vested in the executive branch, namely the ability to grant a limited reprieve from criminal sentences. On Thursday, many called on Gov. Greg Abbott to issue a 30-day reprieve or commute Roberson’s sentence.

Abbott has not publicly commented on the case. Abbott spokespeople contacted by The Dallas Morning News did not respond to requests for comment Thursday.

The House response argued this case shows the “interdependence” of the branches of government and that crossover between branches does not intrinsically negate the separation of powers. The response says the relationship between branches is something only the Texas Supreme Court has the authority to navigate.

“In essence, each branch of government has legal authority to do different things that may create hurdles for the other branches, but that does not equate to a separation of powers breach,” the response reads.

Paxton also argued that the subpoena was issued against Texas House rules requiring subpoenas to be signed by the Speaker of the House, which it was not. He said the subpoena must be served to a witness, which the subpoena named as Roberson, when it was instead served to Sween, his attorney.

Paxton also criticized the committee for waiting 21 years after Roberson’s conviction to issue the subpoena, and said Roberson’s conviction has been affirmed by the Texas Court of Criminal Appeals. He wrote that the subpoena summons Roberson, but does not summon TDCJ to do anything nor reference the agency, which would be required to bring Roberson to testify or otherwise make him available to testify.

Staff Writer Jamie Landers contributed to this report.