Texas House Postpones Testimony of Death Row Inmate in Shaken Baby Case

Robert Roberson, whose execution was postponed last week, had been subpoenaed to appear before a committee of the State House. A juror from his trial says she now believes he is innocent.

Robert Roberson, the Texas death row inmate whose execution in a strongly disputed shaken baby murder case was postponed last week, had been scheduled to testify on Monday before a committee of the State House, but his appearance was canceled in a dispute over whether he would be allowed to testify in person.

The committee did hear from a juror in his case who spoke out for the first time, saying that she would not have voted to convict Mr. Roberson had she known about the medical explanations that his lawyers have since presented for his daughter’s death.

A subpoena for Mr. Roberson’s testimony, issued in a novel last-minute legal maneuver, halted his execution just before it was set to be carried out Thursday evening. The Texas Supreme Court ruled that by issuing the subpoena, a bipartisan group of Texas House members had raised legal questions about the separation of powers that needed to be resolved.

But there was a wave of last-minute scrambling as the hearing was set to begin, with Gov. Greg Abbott filing a brief with the Texas Supreme Court arguing that the Legislature, with its subpoena, had improperly intruded into what ought to be the governor’s authority to postpone executions.

“The power to grant clemency in a capital case,” Mr. Abbott’s office wrote in its brief, “is vested in the governor alone.”

And after the office of the Texas attorney general, Ken Paxton, declared over the weekend that, “in the interest of public safety,” Mr. Roberson would be made available only by video conference from prison, Mr. Roberson’s lawyers objected.

They have argued that his autism, which was diagnosed after the murder conviction, would make any attempt to judge his credibility by video conference “profoundly limited.” And they said that having him appear remotely without his lawyers by his side would deprive Mr. Roberson of access to counsel during the questioning.

One of his lawyers, Gretchen Sween, said that officials from the state prison systems with whom she had spoken last week had appeared open to allowing Mr. Roberson to travel to Austin to testify. “The last I heard was that it was no problem,” she said. “They were helping him get street clothes” so that he would not have to appear in his prison uniform, she added.

The Texas Supreme Court ruled on Sunday that as long as Mr. Roberson was able to give testimony in response to the subpoena, it would not involve itself in the dispute over how he would testify.

When it became clear that no agreement would be reached, Representative Joe Moody, an El Paso Democrat who helped engineer the subpoena, announced that the appearance was off — for now.

“I’m very disappointed to say I don’t believe that will happen today,” Mr. Moody said of Mr. Roberson’s testimony at the start of the hearing.

“Our committee simply cannot agree to video conference,” Mr. Moody said, explaining that Mr. Roberson’s disability would hinder his testimony. He did not rule out that Mr. Roberson could testify in some other way and said that House members were still discussing with the attorney general’s office how to make that happen.

“We cannot get this wrong,” said one of the Republican committee members, Brian Harrison. “I want the state of Texas to lead the nation in just about everything. But executing potentially innocent people is not one of them.”

The committee instead began hearing testimony from a celebrity guest: Phil McGraw, the television host known as Dr. Phil, who has supported Mr. Roberson and interviewed him in prison.

“I am 100 percent convinced that we are facing a miscarriage of justice here,” Mr. McGraw said, at times displaying details of the case on a computer with a logo of his television show visible on its back.

Later, the committee heard from another famous supporter, the novelist John Grisham, who appeared by video. “Let’s have a fair trial," he said. “That’s all we’re asking for.”

But it was testimony from the juror in Mr. Roberson’s case, Terre Compton, that provided the biggest surprise.

She said that contrary to what the attorney general’s office had recently said in court, prosecutors during the trial focused on evidence of shaking, not beating.

At one point, she said, prosecutors demonstrated with a teddy bear or doll the kind of shaking that they believe occurred. “They grabbed it by its arms like this,” Ms. Compton said, holding her arms up, “and then just violently shake, shake, shake, shake, shake, and just try to give us an example of what the shaking consisted of.”

She said she came to believe after the trial that Mr. Roberson was innocent, based on new information that had emerged, and worried that her decision 21 years ago would lead to his death.

“I could not live with myself” if that happened, she said.

Mr. Roberson’s case has attracted attention from a broad range of people — including a majority of the Republican-controlled Texas House and the detective who helped convict Mr. Roberson — who have raised questions about the conviction, which relied in part on a finding of shaken baby syndrome.

His lawyers have argued that the death of his 2-year-old daughter, Nikki, in 2002 was explained by pneumonia and the effect of medications that could affect her breathing. And they have said that Mr. Roberson’s autism, undiagnosed at the time, figured in his conviction as well, because investigators took his absence of apparent emotion as his daughter was dying as evidence of his guilt.

The state has stood by the conviction, saying the girl’s death was caused not just by shaking but also by blunt-force injuries. They have argued that any doubts raised about the reliability of shaken baby syndrome diagnoses in the two decades since Mr. Roberson was convicted do not change the evidence in his case.

Mr. Roberson has had his appeals denied by the state’s top criminal court, the Court of Criminal Appeals, and his request for clemency was rejected by the state’s Board of Pardons and Paroles. Governor Abbott, who has the power to grant a temporary 30-day reprieve to stop executions, did not step in as the execution loomed on Thursday.

The U.S. Supreme Court declined to take the case. Justice Sonia Sotomayor, in a statement agreeing with the court’s decision on legal grounds, said that she nevertheless believed that there were significant questions about the application of evidence about shaken baby syndrome in Mr. Roberson’s case. She said the execution should be halted by Mr. Abbott to prevent a “miscarriage of justice from occurring.”

Instead, it was members of the Texas House, outraged at what they said was the injustice of his case, who took the unusual step of calling Mr. Roberson to testify, and thus forestalling the execution.

But the maneuver does not reopen Mr. Roberson’s case. The Texas Supreme Court said that it had intervened only in response to questions about the respective powers of the legislative and the executive branches of Texas government in the context of a subpoena and a pending execution.

The courts were not, for now at least, reconsidering the conviction, any new evidence or expert testimony in Mr. Roberson’s case.

Still, it was the specifics of his case that Mr. Roberson had been expected to discuss during his testimony. The lawmakers who intervened, led by Representative Moody and Representative Jeff Leach, a Dallas-area Republican, have said that they needed to hear from Mr. Roberson in order to consider the adequacy of state laws.

Texas was among the first states to pass a so-called junk science law, which allows for convictions to be reconsidered on the basis of changes to scientific understanding of evidence.

Mr. Roberson’s lawyers, and the House members, have said that the law should be applied to Mr. Roberson’s case because the medical symptoms that had been used to diagnose shaken baby syndrome in his dead daughter were no longer considered sufficient to support such a diagnosis.

The Court of Criminal Appeals applied the junk science law to a different shaken baby case this month, requiring a new trial in that case. But in Mr. Roberson’s case, the court concluded that the law did not apply, in part because the record did not show that his conviction was based on evidence that his daughter had died from shaking alone.

Mr. Abbott’s office, in its brief, said that those issues with the law — “the supposed point of hearing his legislative testimony” — had already been considered and rejected by the court, and there had been ample time for the committee to seek his testimony earlier, if that was what it had actually wanted

“Only at the eleventh hour, when the Constitution empowers the governor to make the last move, did the House committee decide to violate the separation-of-powers clause,” his office wrote.

Mr. Roberson’s execution is on hold while legal issues around his testimony are considered by the Texas Supreme Court. The court has asked for briefs to be filed by the end of the first week in November.

Once there are no more legal obstacles, a court can order a new execution date to be set for no sooner than 91 days later.

As negotiations over Mr. Roberson’s testimony continued, members of his family were awaiting the outcome. Some attended the hearing in the Capitol on Monday.

Thomas Roberson, 44, the inmate’s younger brother, had traveled from East Texas to attend the hearing in Austin. “He needs a fair trial,” he said before adding: “It’s in God’s hands.”

A sister-in-law and a nephew also packed into the hearing room along with dozens of members of the news media, lawyers and a line of public spectators.

David Montgomery contributed reporting.