Texas Attorney General Ken Paxton filed a motion in the Supreme Court of Texas asking the court to dismiss its Thursday order delaying the execution of Robert Roberson III.
The order, which came late Thursday night, hours after Roberson was scheduled to be executed, granted a subpoena issued by a House Committee calling Roberson to testify Monday about how state’s 2013 “junk science” law allowing people to challenge convictions with new science was applied in his case.
In the 24-page petition filed on behalf of the Texas Department of Criminal Justice, the attorney general’s office says the House committee’s subpoena was “defective on its face.” Paxton’s request said the court does not have jurisdiction in the case, and he also said the order “flouts” the separation of powers and pushes Texas to the brink of a constitutional crisis.
During a Thursday afternoon hearing, a Travis County judge halted the execution of Roberson 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 Supreme Court of Texas stepped in and halted the execution at about 9:40 p.m. Thursday.
Spokespeople for TDCJ did not immediately respond to requests for comment Saturday evening.
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.
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 lay in 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 that 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 House 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 argues that 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 said the jury in Roberson’s case was led to believe Nikki’s status after the hospital stay was her status when she was first brought to the hospital.
Roberson claimed Nikki’s injuries were the result of a fall out of bed, and Sween testified Wednesday that Nikki had many chronic illnesses, namely pneumonia, that contributed to her death, more evidence she said was not presented to the jury.
In the petition, Paxton said evidence at the trial indicated Nikki suffered external blows, “not mere shaking,” and said the injuries indicated abuse.
“Roberson was convicted and sentenced to death in 2003, not for shaking a baby, but for beating his two-year-old daughter to death,” the petition said.
During the Travis County hearing Thursday, Assistant Attorney General Ed Marshall, an attorney with the attorney general’s office, said evidence in the trial showed Roberson had a “history of abuse” against his child. Sween said Wednesday that the testimony against Roberson was not credible.
Paxton argues that the Supreme Court of Texas lacks jurisdiction in the case “four times over.” Paxton said that the House Committee’s effort to use the judiciary branch to undo a decades-old, lawful state court conviction violates the Separation of Powers Clause in the Texas Constitution.
Paxton also 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.
Paxton also argues that the subpoena was issued against Texas House rules requiring subpoenas to be signed by the Speaker of the House, which it was not. Paxton also 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 also argues 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.
During the Travis County hearing Thursday, 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.
Sween and other representatives for Roberson did not immediately respond to a request for comment Saturday evening. State Representatives Jeff Leach, R-Plano and Joe Moody, D-El Paso, who are members of the House Committee that subpoenaed Roberson, also did not immediately respond to requests for comment Saturday evening.
Staff Writer Jamie Landers contributed to this report.