Texas AG files to block testimony on eve of death row inmate's appearance before state House

(CN) — Texas Attorney General Ken Paxton filed a last-minute motion Thursday night to prevent the testimony of death row inmate Robert Roberson, whom state lawmakers had subpoenaed to testify Friday before a Texas House panel.

For months, Paxton has battled over Roberson’s fate with a bipartisan group of state lawmakers who feel Roberson may have been wrongfully convicted in the death of his daughter.

The subpoena compels the Texas Department of Criminal Justice to facilitate Roberson’s appearance at a Dec. 20 committee hearing. Lawmakers argue that Roberson’s testimony is crucial to understanding whether the state’s “junk science” law — which allows prisoners to challenge convictions based on new scientific evidence — was properly applied in his case.

But its unclear whether this testimony will happen. Roberson did not appear at Friday’s hearing. Paxton’s office said in a statement that the request for a protective order automatically relieves the Texas Department of Criminal Justice from having to comply with the subpoena until the court rules on the motion.

In his motion, filed in the District Court for Polk County, Paxton argues that the subpoena is procedurally deficient as there was no public notice given of a meeting to vote on the subpoena, accusing State Representative Joe Moody — an El Paso Democrat and chair of the Criminal Jurisprudence Committee — of being given “the unbounded authority” to decide on the subpoena without a vote with two-thirds approval.

The attorney general also says that transporting Roberson to the hearing would pose an undue burden on state resources and create security risks. And he argues that the stated purpose of the subpoena is merely a pretext to relitigate Roberson’s conviction, which Paxton says is the job of the courts, not the state legislature.

“The committee seeks to run roughshod over the other branches in its efforts to destroy the rule of law,” Paxton writes in the motion.

At the hearing, Representative Moody called Paxton’s claims in the motion “dishonest.” He accused Paxton’s office of refusing to work with the committee to reach a compromise in order to facilitate Roberson’s testimony.

“We have been attempting to try to find an accommodation since October, and they have never responded to anything meaningfully because they don’t want to have Robert here,” Moody said.

In his filing, Paxton requests a hearing on the motion not be held until Jan. 13, saying he will be out of the country from Dec. 27 until Jan. 6. This would be just one day before the Criminal Jurisprudence Committee is set to dissolve on Jan. 14 at the start of the new legislative session.

Moody accused Paxton’s office of trying to “run out the clock” to prevent Roberson from testifying. The Texas Office of the Attorney General did not immediately respond to a request for comment on that accusation.

In a statement to Courthouse News Service, Gretchen Sween, an attorney representing Roberson, said that up until Thursday night she had been given no indication that the Texas Department of Criminal Justice was refusing to transport Roberson to the hearing.

“At the outset of all this, high-level personnel with TDCJ made it clear to me personally that it would be no trouble at all to bring Robert to the Capitol,” Sween said.

“The real ‘fear’ at play here seems to be that seeing and hearing from Robert will make it clear to the public that an innocent man sits on death row who is also a gentle soul with a pronounced disability. Texans deserve better,” she added.

Roberson was convicted of capital murder in 2003 for the death of his two-year-old daughter, Nikki Curtis. He has consistently maintained his innocence, and some medical experts say Roberson’s daughter actually died from undiagnosed pneumonia.

Roberson’s attorneys argue he was wrongfully convicted of shaken baby syndrome, a controversial diagnosis where a caregiver is believed to have violently shaken an infant or toddler, resulting in severe brain damage.

Paxton’s office disputes this, claiming that Roberson was convicted of beating his daughter to death and that shaken baby syndrome played no role in the case, but one of the jurors who convicted Roberson has said the evidence presented to the jury was “all about shaken baby syndrome.”

Roberson’s supporters also claim that his autism, which was undiagnosed at the time of his trial, played a significant role in his conviction, arguing that his atypical behavior during the investigation and trial were misinterpreted as signs of guilt.

Roberson was set to be executed in October, but lawmakers made an unprecedented move to block the execution last-minute by subpoenaing Roberson to testify before the Texas House Committee on Criminal Jurisprudence. The Texas Supreme Court temporarily halted the execution, but it later ruled that lawmakers could only subpoena Roberson in a manner that doesn’t interfere with a scheduled execution. A new execution date hasn’t been set.

Moody issued a new subpoena last week after lawmakers accused Paxton’s office of stalling previous efforts to secure Roberson’s in-person testimony.