Texas House panel subpoenas death row inmate in last-minute bid to stop execution

(CN) — A Texas House committee came up with an unprecedented method to try to halt an execution: subpoena the condemned. Whether the eleventh-hour effort is successful remained anyone’s guess Thursday evening amid a flurry of legal skirmishes.

Roberson, who is set to be executed Thursday evening, would be the first person in the nation to be put death in a shaken baby syndrome case. Many argue he is innocent, including the police detective who originally led the investigation against him.

Despite a bipartisan effort by state lawmakers, medical experts and others to spare Roberson’s life, the Texas Board of Pardons and Paroles voted unanimously Wednesday to deny Roberson’s request for clemency. And on Thursday, he struck out at the U.S. Supreme Court as well.

Roberson had urged the justices to step in, arguing that the state court violated his due process rights by dismissing his appeal on procedural grounds.  Without explanation or any dissents, they denied Roberson’s request for a delay.

Justice Sonia Sotomayor, a Barack Obama appointee, issued a statement noting that Roberson’s only federal claim challenged state court interpretation of state law. Since the claim was outside their jurisdiction, Sotomayor called on Texas Governor Greg Abbott to offer the relief the court could not.

“Because this court is powerless to act without a colorable federal claim, and because the Texas Board of Pardons and Paroles declined to recommend clemency, only one remedy remains: an executive grant of a reprieve delaying Roberson’s execution by 30 days,” Sotomayor wrote.

In its eleventh-hour effort to delay Roberson’s execution, the Texas House Committee on Criminal Jurisprudence voted Wednesday evening to subpoena him to testify before the committee next Monday. That led a Travis County judge to order the state to halt the execution, finding the state lacks the authority to put Roberson to death if doing so means he can’t comply with the subpoena.

Amanda Hernandez, spokeswoman for the Texas Department of Criminal Justice, said the state will appeal that order.

Benjamin Wolff, director of the Texas Office of Capital and Forensic Writs, told The Texas Tribune he has never before seen lawmakers attempt to use subpoena powers to delay an execution.

“It’s an unprecedented subpoena and an unprecedented case,” Wolff said.

Shaken baby syndrome is a controversial diagnosis where a caregiver is believed to have violently shaken an infant or toddler, causing the child’s brain to move back and forth within the skull, resulting in significant brain damage. While doctors once believed that a certain constellation of injuries pointed definitively to a child having been shaken, more recent research indicates that other causes can also result in these same injuries. According to the National Registry of Exonerations, since 1992 at least 34 people have been exonerated after being convicted in cases involving shaken baby syndrome.

In January 2002, Roberson brought his two-year-old daughter Nikki Curtis to a hospital in Palestine, Texas, after finding her unresponsive and with blue lips. Roberson told medical staff his daughter had fallen out of bed earlier that night. At the hospital, Nikki’s condition deteriorated, and she was declared brain dead the next day.

Prosecutors argued that Nikki’s injuries were consistent with shaken baby syndrome, but Roberson has consistently maintained his innocence. His attorneys and some medical experts argue that Nikki’s death was actually caused by complications from severe pneumonia.

Even the former police detective who led the investigation now believes Roberson is innocent. Brian Wharton, now an ordained minister in the United Methodist Church, told USA Today that confirmation bias led him to point the finger at Roberson.

“That emotional charge in the hospital that here is a 2-year-old little girl that is about to die, somebody did this to her, who did it, how did it happen?” Wharton said. “And the first thing you hear is abuse, shaken baby syndrome, and we just take it and run with it, and we find all the facts that we need to make it stand up.”