CNN
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Barring intervention from the court or the governor, Texas will execute death row inmate Robert Roberson on Thursday, who claims he was wrongly convicted of abusing his two-year-old daughter until her death.

But the status of the execution process is now unclear following an extraordinary decision by a Texas House committee Wednesday night to subpoena Roberson to testify as it reconsiders the legality of his conviction.

“This extraordinary and unprecedented maneuver reflects how seriously Texas lawmakers have evaluated the concerns in Mr. Roberson’s case,” Robin Maher, executive director of the Death Penalty Information Center, told CNN of the decision. “They are also sending an urgent, public message to Governor (Greg) Abbott that they, like so many others, do not believe Mr. Roberson should be executed.”

The Texas Department of Criminal Justice has not announced whether Roberson’s execution will be postponed due to the subpoena from the Texas Committee on Criminal Jurisprudence calling for Roberson to testify on October 21. The ministry said Wednesday evening it was discussing “appropriate next steps.” with the Attorney General’s office.

If he is put to death, Roberson’s lawyers say he would be the first person in the U.S. to be executed for a conviction that rested on a charge of shaken baby syndrome, a misdiagnosis in Roberson’s case. or so they claim, and one they believe has been discredited.

While child abuse pediatricians fiercely defend the legitimacy of the diagnosis, Roberson’s advocates say the courts have yet to consider sufficient evidence that his daughter, Nikki Curtis, did not die of a murder but of a variety of causes, including disease and drugs which are now considered unsuitable. for such a sickly child.

The pleas of Roberson’s many supporters have so far done nothing to stop the march toward his execution, and his conviction has so far been upheld on appeal.

But his lawyers continue to try to argue their case in court: They have filed a request for a stay of execution with the U.S. Supreme Court, arguing that his due process rights were violated when the Texas Court of Criminal Appeals denied additional evidence to take into consideration. the prisoner says he would support his claim of innocence.

Texas urged the Supreme Court in a petition Wednesday evening to deny Roberson’s emergency appeal, claiming the arguments he has advanced are “unworthy of the court’s attention.”

The courts, Texas officials said, “gave Roberson the resources and opportunity to pursue claims, gather evidence to support his case and address the negative evidence presented against him.” The fact that Roberson was denied, state officials told the Supreme Court, “does not mean that he was denied notice or the opportunity to be heard.”

“The record shows that the state’s habeas procedure adequately satisfied due process,” Texas told the Supreme Court in its brief.

Earlier Wednesday, the Texas Board of Pardons and Paroles declined to recommend clemency after his attorneys requested that his death sentence be commuted to a lesser sentence — or a 180-day delay to allow his appeal to be argued in court. .

Without the parole board’s recommendation, Abbott, the GOP governor, is limited to issuing a one-time 30-day stay to allow the execution. CNN has contacted Abbott’s office for comment.

Roberson’s claim of innocence underlines the inherent risk of the death penalty: a potentially innocent person could be brought to justice dead. Since 1973, at least 200 people — including 18 in Texas — have been exonerated after being sentenced to death, according to the Death Penalty Information Center.

At the time of her death, Nikki had double pneumonia that had progressed to sepsis, they say, and she had been prescribed two medications now considered unsuitable for children and which would have further impaired her ability to breathe. Moreover, she had fallen out of bed the night before Roberson took her to the emergency room in Palestine, Texas — and was particularly vulnerable given her illness, Roberson’s attorneys say, pointing to all of these factors as explanations for her condition.

Other factors also contributed to his conviction, they say: Doctors who treated Nikki “suspected” abuse based on her symptoms and general beliefs at the time of her death, without examining her recent medical history, the lawyers allege. prisoner. And his behavior in the emergency room – seen as indifferent by doctors, nurses and police, who believed it as a sign of his guilt – was actually a manifestation of autism spectrum disorder, which went undiagnosed until 2018.

“I told my wife last week that I am ashamed. I’m ashamed that I was so focused on finding a perpetrator and convicting someone that I didn’t see Robert. I didn’t hear his voice,” Brian Wharton, the former detective who oversaw the investigation into Nikki’s death, told state lawmakers Wednesday during a hearing on the case.

“He’s an innocent man, and we’re about to kill him for something he didn’t do,” Wharton said.

Wharton is perhaps — besides Roberson’s attorney, Gretchen Sween — the inmate’s most outspoken advocate. On Tuesday, the detective-turned-Methodist minister learned that the inmate had put him on his list of witnesses in case the execution went ahead.

“There’s a part of me that just wants to run away from that. I don’t want to be there, I don’t want to see it happen,” Wharton told CNN. “But it is, once again, a moment I owe him. If he asked me to be there, I owe him a lot.”

Wharton is now one of many Roberson supporters: more than 30 scientists and medical experts who agree with the doctors cited by the inmate’s lawyers, a bipartisan group of more than 80 Texas lawmakers, autism advocacy groups and author John Grisham have all called for mercy. , a fervent movement that has strongly opposed the execution in recent days.

Support in the Legislature includes members of the Texas Committee on Criminal Jurisprudence, which held a hearing Wednesday highlighting Roberson’s case, calling Wharton, Sween and others who gave voice to the doubts surrounding the diagnosis shaken baby syndrome.

The hearing was ostensibly about Texas Article 11.073, a state law commonly referred to as the “junk science writ,” which was intended to give defendants a way to challenge their convictions when new scientific evidence is unavailable at the time of their trial was.

The committee voted Wednesday to subpoena Roberson, calling on him in the motion to “provide all relevant testimony and information regarding the committee’s investigation.” While the committee is not entirely certain that Roberson’s execution will be stayed, they are hopeful, a source with knowledge of the proceedings told CNN.

Last week, the appeals 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 should also benefit from this law, which was “precisely intended for cases like this,” the committee said in a letter to the Texas Court of Criminal Appeals.

The committee asked for a stay of execution in Roberson’s case while the Legislature considered making changes during the upcoming legislative session. But the appeals court dismissed Roberson’s latest appeal on Wednesday, dismissing it on procedural grounds “without assessing the merits of the claims presented.”

Republican Party Rep. Jeff Leach, a member of the committee, expressed hope that the governor and parole board listened to the hearing, “because the law that the Legislature passed and our governor signed into law is being ignored by our courts, and all we’re trying to do here is hit the pause button to make sure it’s enforced.”

Roberson’s attorneys do not dispute that babies can die from being shaken. But they argue that milder explanations, including illness, can mimic the symptoms of tremors, and those alternative explanations must be ruled out before a medical expert testifies with certainty that the cause of death was abuse.

Shaken Baby Syndrome is accepted as a valid diagnosis by the American Academy of Pediatrics and is supported by child abuse pediatricians who spoke to CNN. The condition, first described in the mid-1970s, has been considered for the past 15 years to be a form of ‘abuse head trauma’ – a broader term used to describe actions other than shaking, such as a blow to the head of a child.

Criminal defense attorneys have also oversimplified the way doctors diagnose abuse from head trauma, pediatricians say, noting that many factors are taken into account to determine this.

Still, the diagnosis has been the focus of debates in courtrooms across the country. Courts in at least 17 states and the U.S. military have exonerated 32 people convicted in shaken baby syndrome cases since 1992, according to the National Registry of Exonerations.

Pediatricians in the field of child abuse, such as Dr. Antoinette Laskey, president of the American Academy of Pediatrics’ Council on Child Abuse and Neglect, dispute these statistics. She pointed to a 2021 article that found that only 3% of all convictions in shaken baby syndrome cases were overturned between 2008 and 2018, and only 1% of those were overturned due to medical evidence. However, the thoroughness of that investigation is being questioned.

“I don’t know what to say about the legal controversy,” Laskey told CNN of the courtroom debate (she did not speak about Roberson’s case). “This is real, it affects children, it affects families… I want to help children; I don’t want to diagnose abuse: that’s a bad day.”