How a legal fight could help death row inmate Robert Roberson

Legal battle over Texas inmate's testimony continues

State lawmakers are being vague about what's next for death row inmate Robert Roberson, who was convicted of killing his 2-year-old daughter in 2002. A bipartisan committee helped to stop his execution by asking to hear from him directly, but the governor and attorney general are blocking attempts to hear his comments in person.

The longer a legal battle between a Texas House committee and the state's attorney general's office drags on, the more possibilities are opened for death row inmate Robert Roberson, according to one constitutional law attorney.

Roberson's execution was stayed last week after he was subpoenaed by the committee, leaving Roberson's fate unclear.

Attorney David Coale, who is not connected to the case, said former Court of Criminal Appeals Judge Elsa Acala's testimony in the committee hearing points out that one-third of the judges on the state's highest appeals court lost their primaries, which could lead to a shift from the 5-4 decision the court made denying Robert Roberson's stay request prior to his being subpoenaed by the House.

Elsa Alcala

"The Court of Criminal Appeals order that denied the stay of execution had four dissenters," Coale said. "They didn't write an opinion, but it was a 5-4 vote. And so clearly, there were a lot of mixed feelings about it on our state's highest criminal court. If the result of the election is a change in that makeup such that 5-4 goes the other direction, sure, you could see something different happen. And perhaps that's the endgame here."

Wednesday's subpoena of Roberson by the Texas House Committee on Criminal Jurisprudence has locked the committee into a legal battle with the state Attorney General's Office to get the inmate to appear in-person for the hearing.

Robert Roberson praying with Texas lawmakers

"We didn't issue the subpoena to create a constitutional crisis, and we aren't interested in escalating a division between branches of government," Committee Chair Rep. Joseph Moody (D-El Paso) said.

The committee asked one of the 12 jurors who convicted Roberson of killing his 2-year-old daughter, Nikki, if they still believed Roberson murdered his daughter.

"No," the juror said.

Roberson would be the first inmate to be put to death for a conviction related to "shaken baby syndrome." His attorneys have called the diagnosis "junk science."

Acala told the committee a 2013 law meant to combat "junk science" allows someone convicted of a crime to seek relief if evidence used against them is no longer credible is not being used the way people hoped.

"This statute is not being used the way people had hoped it would be used to bring justice to Texas," Alcala said.

Moody said on Tuesday he fully anticipates the committee will hear from Roberson, and they're "working on those details."