Texas lawmakers probing the validity of evidence used to convict Texas death row inmate Robert Roberson heard testimony Monday from witnesses including TV personality Phillip “Dr. Phil” McGraw and author John Grisham — but no testimony from Roberson himself, who was barred from appearing in person by Texas Attorney General Ken Paxton.
The Texas House Committee on Criminal Jurisprudence subpoenaed Roberson to testify Monday afternoon in a hearing about the use of shaken baby syndrome to convict him in the 2002 death of his 2-year-old daughter Nikki.
But while Roberson’s anticipated testimony drew interest from the public and lawmakers alike, Paxton said over the weekend it was too dangerous to bring the death row inmate to the Capitol. Instead, Paxton said he would have to testify via Zoom.
In a letter to the House committee Saturday, Roberson’s attorney Gretchen Sween said Roberson wouldn’t be able to communicate effectively over video because he is autistic and is unfamiliar with modern technology, having been in prison for more than 20 years.
The committee agreed with Sween and was working on an arrangement to have Roberson appear at a later date, according to committee chair Joe Moody, D-El Paso.
“That doesn't mean Robert won't testify at all,” Moody said. “In the spirit of cooperation, we are in talks with the attorney general's office right now about ways their position can be addressed while allowing our committee to hear Robert in person.”
Prosecutors successfully argued Roberson violently shook Nikki, but the validity of shaken baby syndrome has been widely disputed since then. His legal team says evidence shows Nikki likely died from pneumonia, which she had the night she died.
Dr. Phil, who has a doctorate in clinical psychology but is not a licensed psychologist, told legislators he spoke with Roberson directly and reviewed the evidence in his case extensively. He said he doesn’t believe any crime was committed, nor was the state’s junk science law sufficiently applied in Roberson’s case.
“I am 100% convinced that we're facing a miscarriage of justice here,” McGraw said. “I say that because I do not believe that Mr. Roberson has had due process in this case."
Roberson didn’t show any signs that he was lying, McGraw said, but it was clear Roberson struggled to communicate due to his autism and he should have gotten more help to express himself in his defense decades ago. Roberson’s attorneys say his odd reaction to his daughter’s death was due to his autism and contributed to his conviction.
Terre Compton, one of the original jurors in Roberson’s trial, now believes he is innocent and rejected the state’s argument that Roberson’s case is not a shaken baby case. She said all the evidence presented to the jury at the time indicated Nikki died of shaken baby syndrome, though Compton said she did not see any evidence of bruising to show Nikki was hit with anything.
Jurors also did not hear about the child’s pneumonia, her history of illness or that Nikki was given Phenergan to treat her fever, a medicine which is no longer given to children under age 6.
The new research showing Roberson was possibly wrongfully convicted brought Compton to tears when she spoke about it with her husband and friend, she said.
“My decision 21 years ago was getting ready to come to realization, and I literally, in my eyes, was killing a man that I knew was innocent, and I was going to have to live with that,” she said.
The hearing also drew protestors at the Capitol in support of Roberson. Among them was Barrett Hess, who's studying to be an Episcopal priest at the Seminary of the Southwest in Austin.
"For me — and I think for a lot of Christians — the death penalty is never acceptable. I think that it's especially egregious when there's a possibility that the person might be innocent," said Hess. "It really seems like, especially given how bipartisan the committee is that wants him to be exonerated, that there's a lot of evidence that indicates that he didn't commit the crime he's accused of. Which makes this even more of an urgent case.”
Earlier this month, the state’s highest criminal court overturned a Dallas County man’s conviction involving shaken baby syndrome, a case Roberson’s attorneys hoped would encourage the court to grant a stay of his execution but did not.
In a historic move, a bipartisan group of Texas lawmakers subpoenaed Roberson to testify in front of the House committee. A Travis County judge issued an injunction the day of the execution to uphold the subpoena and delay Thursday’s execution.
The Texas Court of Criminal Appeals reversed that ruling, clearing the way for Roberson’s execution again. But the Texas Supreme Court, usually the state’s court of last resort for civil cases, ruled the subpoena must be honored and thus blocked Roberson’s execution.
Execution dates must be set at least 91 days in advance, according to Texas law, so the earliest Roberson can be executed is now January. Three of the five Court of Criminal Appeals judges who denied Roberson’s appeals without explaining their reasoning will no longer be on the court by then.
Judges Barbara Hervey, Sharon Keller and Michelle Slaughter were beaten by Paxton-backed Republican challengers during the March primary election. Depending on the results of the Nov. 5 election, that opens up some options for Roberson’s case. That’s according to Elsa Alcala, a former Court of Criminal Appeals judge who testified during Monday’s hearing.
If one of those new judges joins the four judges who voted to pause Roberson’s execution, his execution could be formally stayed and his case could be reheard, even without the request of Roberson’s attorneys.
However, the three new judges could also vote to clear the way for Roberson’s death.
“And if that happens,” Alcala said, “I don’t know of a way to avoid execution.”
But the court could also rehear Roberson's case right now, Alcala added.
Gov. Greg Abbott’s office remained quiet on Roberson’s case until Sunday, when his office urged the Texas Supreme Court to reject the House's subpoena of Roberson. In a letter, Abbott’s general counsel James Sullivan wrote only the governor may grant clemency and delay executions for 30 days, but state lawmakers have effectively delayed Roberson’s execution for much longer, violating the separation of powers outlined in the Texas Constitution.
“Nobody other than the Governor, in any branch of this State’s government, can exercise that constitutional clemency power,” Sullivan wrote. “Not the House Committee on Criminal Jurisprudence. Not the 53rd Judicial District Court of Travis County. Not the Court of Criminal Appeals. Not even the Supreme Court of Texas.”
In his comments ahead of the hearing, Rep. Brian Harrison, a North Texas Republican, said the House committee is well within its rights to subpoena Roberson and conduct a hearing.
“If the House of Representatives cannot exercise legislative oversight to make sure that our laws are not just being faithfully adhered to, but that they are not potentially being so egregiously violated that it may result in the life of a potentially innocent person being taken by the government, then I would posit there may be no matter that could be subject to legitimate legislative oversight,” he said.
Bob Smilie, who brought brought a banner to the Capitol in support of Roberson, called Abbott "willfully ignorant" about Roberson's case.
"He wants to execute a man instead of justice,” Smilie said. “That's what Greg Abbott wants to do. That's what Ken Paxton wants to do. This is criminal behavior by the government.”
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