Texas lawmakers say AG Ken Paxton is trying to 'run out the clock' in Robert Roberson execution case
AUSTIN - Texas lawmakers who stopped the execution of Robert Roberson hoped to hear testimony from him on Friday. Instead, they heard from a Michigan man who was convicted of shaking his child in 2015 and whose conviction was vacated last month.
Roberson was convicted of killing his 2-year-old daughter in 2002 and is set to be executed.
Much of the case against Roberson focused on a diagnosis of "shaken baby syndrome," which has since been called into question.
Full Hearing: Texas Criminal Jurisprudence Committee
The Texas Criminal Jurisprudence Committee met on Dec. 20, 2024, to hear arguments on Texas' "junk science law." The committee wanted to here from Texas death row inmate Robert Roberson but a late motion filed by Attorney General Ken Paxton blocked his appearance. The committee heard from Josh Burns who was convicted in Michigan of shaking his baby in 2015. Burns' conviction was overturned in November. Burns spent one year in jail and two years on probation.
What We Know
The Texas House Committee on Criminal Jurisprudence did not hear from Roberson on Friday.
Roberson’s execution was put on hold when the House committee called him to testify in October.
That testimony also did not happen, but the Texas Supreme Court did say the committee has the right to hear Roberson's testimony before his new execution date.
Texas Attorney General Ken Paxton called the subpoena from the committee overly burdensome and requested a court hearing on his complaint.
While Roberson did not testify, Josh Burns did. He is a pilot trainer from Dallas who was convicted of second-degree child abuse in Michigan in 2015.
Robert Roberson (left) and Texas Attorney General Ken Paxton (right)
Burns spent one year in prison for the crime. His conviction was overturned and was exonerated in November 2024 with help from the Michigan Innocence Project.
Burns testified that it was the Michigan Attorney General's Office that helped get his case reopened and eventually got his conviction overturned.
Burns described concerns about how his case was handled that have been raised in Roberson's case as well.
"I watched in horror as the prosecutor was allowed to keep from the jury new scientific research, medical articles that have challenged shaken baby syndrome," he testified.
Committee chairs Rep. Joe Moody (D-El Paso) and Rep. Jeff Leach (R-Plano) hoped Roberson's testimony would help shed light on the state's "junk science" law, which Roberson's attorneys believe could be used to overturn his conviction.
Paxton stepped in on Thursday night. His office filed a motion for a protective order to prevent Robert Roberson from testifying at the State Capitol.
The AG's Office claimed the House subpoena to testify was "incorrect" and was issued in violation of the state constitution.
According to the attorney general's office, the filing of the motion excuses the Texas Department of Criminal Justice from complying with the subpoena, pending a hearing and resolution of the motion.
"In addition to presenting serious security risks, the subpoena is procedurally defective and therefore invalid as it was issued in violation of the House Rules, the Texas Constitution, and other applicable laws," the attorney general's office said.
A previous Texas Supreme Court ruling in the case said that a House committee could compel a witness to testify as long as it did not interfere with a scheduled execution.
In Paxton's motion, he requested a court hearing not be set before January 13, 2025, because he will be out of the country.
The Texas House Committee on Criminal Jurisprudence disbands when Texas' new legislative session begins on Jan. 14, 2025.
What They Are Saying:
Gretchen Sween, an attorney for Roberson, said in a statement that Paxton's office "interfered with the Committee’s lawful right to obtain his appearance and take his testimony."
Sween says the logistics for transporting Roberson and already been worked out calls the actions of Paxton's office "cheap fear mongering."
"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," wrote Sween in a statement.
Moody said the claims made in Paxton's Thursday filing were dishonest as he addressed the committee Friday afternoon.
Moody claims Paxton is trying to prevent the public and committee by "running out the clock" on the committee. Paxton asked for the hearing on Thursday's motion to be held after Jan. 13, 2025.
Leach accused Paxton of trying to delay hearings by the committee on Roberson "until they become moot." He suggested that Paxton was delaying until the start of the new legislative session when committee members may change.
"As shocking as it is, and alarming as it is, it is not surprising," Leach said. "The effort has been to hide him and silence him because his testimony would be instructive."
Before adjourning Friday's meeting, Moody addressed the role of the committee.
"I am not an attorney representing a client," Moody said. "I am a member of the legislature trying to do my job with a state agency. So, the threats need to end, and the cooperation needs to begin. That is how we do our jobs and that's what the people of Texas expect us to do."
What We Don't Know:
While it appears unlikely that Roberson will appear, there have been many legal twists and turns since October.
There is still lots of uncertainty about what happens next.
There currently is no date set for Roberson's execution.
Minute-By-Minute Updates:
1:35 p.m. - The committee stands at ease. Hearing over.
1:33 p.m. - Moody: "I am not an attorney representing a client. I am a member of the legislature trying to do my job with a state agency. So, the threats need to end, and the cooperation needs to begin. That is how we do our jobs and that's what the people of Texas expect us to do."
1:30 p.m. - Before adjourning for the day, Rep. Leach recommends the committee meet again in early January. He suggests Paxton can appear before the committee virtually.
1:23 p.m. - Moody: "Navigating a space in which a state agency doesn't comply with the government code creates a few complications."
The committee has finished hearing from Burns. Moody says this is the time that they would have heard from Roberson.
1:15 p.m. - Moody: "That is why the founders spent an enormous amount of time on the rights of the accused. It's why a committee like this is integral to ensuring that our society has a just and fair system. This is the work we get to do."
12:50 p.m. - Rep. Harrison: "Hundreds of people may be sitting in a cage like an animal for a crime they did not commit? Is that your testimony today?"
Burns: "Yes."
12:48 p.m. - Burns said he was fortunate because he had resources to fight his case.
"I can't even imagine someone like Robert, with the lack of resources he had, having to go into that fight."
12:44 p.m. - Burns said the Michigan attorney general's office was instrumental in reviewing his case and working with the Michigan Innocence Project to get his conviction vacated.
12:40 p.m. - Burns served one year in prison and two years of probation after being convicted of second-degree child abuse.
12:35 p.m. - The committee is hearing from Josh Burns. Burns was accused of shaking his baby daughter in Michigan. He was exonerated in November.
WATCH: Rep. Brian Harrison addresses the committee.
Harrison: "We are Texas and we are better than that"
State Rep. Brian Harrison speaks at a Texas House Committee on Criminal Jurisprudence over the case of Robert Roberson. Roberson is on death row for the killing of his 2-year-old daughter, but questions have arisen about the science used in the case.
12:28 p.m. - Rep. Brian Harrison: "One sad reality that is becoming increasingly clear through this unfortunate and wholly unnecessary saga is some elected officials actually care about protecting separation of powers in this state, while others, I hate to say it, simply pretend to care when another branch does something that they do not like."
WATCH: Jeff Leach calls AG's motion "shocking."
Rep. Leach AG's motion 'shocking' in Roberson case
State Rep. Jeff Leach (R-Plano) says he will not "relent" in seeking the testimony of death row inmate Robert Roberson. Leach called a motion to block Roberson's testimony "shocking." Roberson is on death row for the killing of his 2-year-old daughter, but questions have arisen about the science used in the case.
12:25 p.m. - Leach called the filing from Paxton shocking but not surprising. Says the committee never wanted to step on the governor's authority or the authority of the parole board.
Leach: "Mr. Roberson is still alive today because of the actions of this committee.
"I don't intend to relent until truth and justice are secured for Mr. Roberson."
12:21 p.m. - Rep. Jeff Leach: "The attorney general has knowingly and intentionally delayed resolution of the issues in front of us until they become moot."
WATCH: Rep. Joe Moody's opening statement:
Robert Roberson hearing: Rep. Moody opening statements
Texas Committee on Criminal Jurisprudence chair Joe Moody says an Office of the Attorney General motion that blocked the testimony of death row inmate Robert Roberson is "dishonest." Roberson is on death row for the killing of his 2-year-old daughter, but questions have arisen about the science used in the case.
12:19 p.m. - Moody claims Paxton is trying to prevent the public and committee by "running out the clock" on the committee. Paxton asked for the hearing on Thursday's motion to be held after Jan. 13, 2025.
12:15 p.m. - Moody: Motion is filled with dishonest claims about what [the committee] is doing.
12:12 p.m. - The House Criminal Jurisprudence Committee is seated and underway.
Rep. Joe Moody opened the meeting by addressing the motion filed by Attorney General Ken Paxton preventing Roberson's appearance in front of the committee.
What's next: Moody left the committee at ease at the end of Friday's hearing.
Leach suggested the committee meet again in early January with the hopes of hearing from the attorney general's office.
Leach suggested that Paxton could meet with the committee virtually since the attorney general would be out of the country until Jan. 13.
"I am not an attorney representing a client," Moody said. "I am a member of the legislature trying to do my job with a state agency. So, the threats need to end, and the cooperation needs to begin. That is how we do our jobs and that's what the people of Texas expect us to do."
Robert Roberson Murder Conviction
The Backstory: Roberson, 58, was convicted of killing his 2-year-old daughter in Palestine, Texas in 2002.
He took her to the emergency room with a high fever, where medical staff determined her condition was consistent with shaken baby syndrome.
Roberson's attorneys have challenged that diagnosis, calling it "junk science."
They say Nikki died from natural causes, likely undiagnosed pneumonia.
Robert Roberson's Delayed Execution
A coalition of lawmakers and the lead detective on the case have argued the science supporting Roberson's death sentence doesn't hold up.
The Texas House Committee on Criminal Jurisprudence issued a subpoena on the day before Roberson's scheduled execution on Oct. 17 for the death row inmate to testify at a hearing about his case. The Supreme Court paused the execution that night to review the committee's request.
The Supreme Court later ruled that a subpoena could not interrupt a future execution, but said it could compel a witness to testify if no execution was looming.
Some relatives of the 2-year-old have criticized lawmakers for delaying Roberson's execution.
Texas' Junk Science Law
Texas passed its "junk science" law in 2013.
The law allows a person convicted of a crime to seek relief if the evidence used against them is no longer credible.
Texas' junk science law was the first of its kind in 2013. Legal experts called it a model for states across the country.
California, Connecticut, Michigan, Nevada and Wyoming have similar "junk science" statutes, but it has not been studied how successful they are at overturning death penalty convictions.
You can read the law as it was passed in 2013 here:
By The Numbers
No one facing execution has had their sentence overturned since the junk science law was enacted in 2013, according to a report by civil rights group Texas Defender Service.
In the last 10 years, 74 applications have been filed and ruled on under the junk science law. A third of applications were submitted by people facing the death penalty. All of them were unsuccessful.
Of the applications that led to relief, nearly three-quarters were for convictions related to DNA evidence despite making up less than half of all applications.