Death row inmate Robert Roberson no longer expected to speak before state House committee

Texas Attorney General Ken Paxton has filed a motion that he said excuses the Texas Department of Criminal Justice from complying with a subpoena from the Texas House Criminal Jurisprudence Committee that calls for the testimony of death row inmate Robert Roberson regarding the state’s so-called “junk science” law.

Roberson's "shaken baby syndrome” murder conviction in the 2002 death of his 2-year-old daughter has come under scrutiny.

"I filed a motion for a protective order to prevent a procedurally deficient and overly burdensome subpoena from enabling a convicted murderer to testify at a House Committee hearing," said Paxton in an online post Thursday night. "The filing of the motion automatically excuses the Texas Department of Criminal Justice from complying with the subpoena pending a hearing and resolution of the motion."

In a statement to ABC News, Roberson’s attorney, Gretchen Sween, criticized the decision and said Roberson will not be appearing before the committee.

"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," said Sween. "Texans deserve better.”

The legislation, passed in 2013, creates a pathway for people to challenge their convictions if "relevant scientific evidence" subsequently surfaces that "was not available to be offered by a convicted person at the convicted person's trial," or "contradicts scientific evidence relied on by the state at trial" and that potentially could have affected the outcome of their case. However, some legislators say they are concerned that the state law may not adequately address these issues and the House committee is now investigating it.

“Robert is eager to testify and grateful for the chance to be heard,” Sween said prior to Paxton's recent motion. “We will do all we can to cooperate, and I profoundly hope that his ability to appear is not obstructed by those who, for whatever reason, do not want the lawmakers and the public to hear from him directly about his experience trying to communicate his innocence.”

Roberson was set to become the first person in the U.S. executed for a shaken baby syndrome diagnosis murder conviction on Oct. 17 before the court intervened and a state House committee issued a subpoena for Roberson to testify on the law on Oct. 21, halting the execution. However, Roberson did not testify that day.

A new execution date has not yet been scheduled, according to Roberson's legal representatives. In November, the Supreme Court of Texas noted that a subpoena could not block a scheduled execution.

Roberson was found guilty of the 2002 murder of his 2-year-old daughter, Nikki, in part based on the testimony of a pediatrician who described swelling and hemorrhages in her brain to support a shaken baby syndrome diagnosis. He was tried and convicted of capital murder in 2003 and sentenced to death.

Roberson's legal team argued that evidence not presented at the trial found that Nikki had pneumonia and had been prescribed respiratory-suppressing drugs by doctors in the days leading up to her death, leading to a case of severe viral and bacterial pneumonia that progressed to sepsis and then septic shock.

Additionally, Roberson's team says his autism affects how he expresses emotion; investigators noted Roberson's lack of emotion during his arrest.

Roberson’s fight for clemency has been backed by a bipartisan group of more than 80 state lawmakers, as well as medical, scientific and criminal justice advocates who have questioned the legitimacy of the use of the shaken baby syndrome diagnosis in his case based on newer scientific evidence. The lead detective on Roberson's case at the time, Brian Wharton, also now argues that missing evidence hindered the case.

However, Texas Attorney General Ken Paxton and other state officials have argued that "Roberson was lawfully sentenced to death" and that he has "exhausted every legally available appellate avenue" -- noting that the case was heard once more by a trial court in 2021 in a dayslong evidentiary hearing after his execution was first halted, and earlier this year, Roberson's team requested that a district court reopen his case.

Paxton also argued that the jury did not convict Roberson solely based on the controversial shaken baby syndrome diagnosis, though Roberson's attorneys said that "shaken baby" was referred to by prosecutors and witnesses throughout the jury trial.

Editor’s note: This story was updated after initial publication to reflect the Texas attorney general’s filed motion and to include Roberson’s attorney’s response.