Texas House panel may never hear Robert Roberson’s testimony after new legal move

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A Texas House committee was left without its key witness on Friday after Attorney General Ken Paxton filed a motion late Thursday barring death row inmate Robert Roberson from testifying at the Capitol.

The bipartisan House Committee on Criminal Jurisprudence had planned to hear directly from Roberson on Friday about his failed efforts to overturn his capital murder conviction using the state’s junk science law, which grants new trials in cases that relied on scientific evidence that is later discredited.

But Paxton’s motion, which argued that the panel’s subpoena to Roberson was “procedurally deficient and overly burdensome,” excused the state prison system from complying with the committee’s subpoena and allowing Roberson to testify in person.

That left the future of Roberson’s testimony unclear.

“The effort here has been by some to hide him and silence him, because his testimony would be instructive,” state Rep. Joe Moody, D-El Paso and the committee's chair, said on Friday. “Our laws have affected him as deeply as they can affect anyone, and it's our job here in this building to make sure they're fair and just and work as intended. That job is far from over on this issue, and we don't intend to leave it undone.”

Roberson was convicted of capital murder in 2003 for the death of his 2-year-old daughter Nikki, who was diagnosed with shaken baby syndrome. He has argued that new scientific evidence discredits Nikki’s diagnosis and shows she died of natural and accidental causes.

Lawmakers have tried for weeks to bring him to Austin after the Texas Supreme Court noted in November that state officials should be able to produce Roberson for testimony in compliance with a subpoena, as long as it does not interfere with a scheduled execution. After the committee’s first subpoena expired, it served him with another one this week.

Roberson's execution has not yet been rescheduled.

On Friday, members of the bipartisan panel excoriated the attorney general's office for its intervention in Roberson's testimony.

“If the case against him is so open and shut, as they say, why are they working so hard to flaunt laws passed by our Legislature and signed by our governor?” state Rep. Brian Harrison, R-Midlothian, said. “Are government officials really willing to let a potentially innocent person be put to death by the government in order to protect the reputation of a government system?

Moody and Rep. Jeff Leach, R-Plano, accused the attorney general’s office of stalling Roberson’s testimony until the panel automatically dissolves next month with the start of the new legislative session.

In his motion to block Roberson’s testimony, Paxton asked the court to hold a hearing before it decides whether to grant his request. But he asked that the hearing not be set before Jan. 13, saying he will be out of the country.

The new legislative session starts — and the committee disbands — on Jan. 14.

“We all see this for what it is,” Leach said on Friday. “As shocking as it is and alarming as it is, it's not surprising.”

Leach noted that Paxton had numerous lawyers who typically represent the attorney general's office in court. And he said that he had heard from several lawmakers, including those who disagreed with him over Roberson's case, saying they were “equally concerned” about Paxton's moves against the committee.

He asked the committee to consider demanding that Paxton or one of his designees appear at a committee hearing before Jan. 14 to explain the attorney general's authority to interfere with the committee's subpoena. “We have not come this far to only come this far,” he said.

Paxton’s office, which legally represents the prison system, hamstrung efforts to secure Roberson’s in-person testimony even before Thursday's motion by insisting that nothing legally compels the executive branch to bring him to the Capitol.

Fifteen emails between Moody and Paxton’s office obtained by the Tribune document the ongoing tensions between lawmakers and the executive branch over Roberson’s case.

In response to the committee’s first subpoena, Paxton’s office sunk plans for Roberson to testify at an Oct. 21 hearing in person and said that the inmate would only be permitted to appear virtually due to public safety concerns — an arrangement the panel opposed due to Roberson’s autism.

Instead, Moody suggested that the committee could travel to death row and take Roberson’s testimony there. But after Moody adjourned the Oct. 21 hearing, Paxton’s office shut that possibility down.

“The subpoena issued to Mr. Roberson required his testimony on Monday, and TDCJ did not impede Mr. Roberson’s compliance with the subpoena, going so far as to attempt to facilitate his appearance via Zoom,” Kimberly Gdula, the attorney general’s chief of general litigation, wrote to Moody on Oct. 25. “The House’s subpoena has now expired, and the committee has adjourned.”

After the Texas Supreme Court issued its ruling that Roberson could testify as long as it didn’t interfere with an execution, Moody asked Gdula in an email if they could reach an agreement on having Roberson testify without requiring a new subpoena.

On Dec. 6, Gdula sent a series of questions and conditions, and sought to bar Moody from directly contacting the Texas Department of Criminal Justice, which operates the state prisons.

She asked “why Roberson could not furnish any needed testimony through safer alternatives like remote appearance by video,” and claimed that the office “had no information as to what topics you intend to discuss that only Roberson would be able to provide relevant testimony on.”

She also wrote that representatives from the attorney general’s office, the Anderson County District Attorney’s office and Gov. Greg Abbott’s office had “a right to be present at any hearing where Roberson is testifying so they may assert any objections to questions that go beyond the scope of the Committee’s limited authority to question a death-row inmate.”

Moody rejected the conditions, reiterating the committee’s opposition to a virtual appearance due to Roberson’s autism, referencing public materials describing the committee’s reasoning in seeking Roberson’s testimony and noting that the committee and TDCJ had addressed various safety and logistical issues on Oct. 18 — before Paxton’s office stepped in.

“This is a subpoena, so any opinion related to ‘the import of Roberson’s testimony’ does not authorize disobedience of it,” he wrote. “Anyone may attend this public hearing, but no one will be recognized to ‘assert any objections’ because this is not an adversarial proceeding and there is no judge to whom you may object.”

Lawmakers vowed on Friday to continue fighting for Roberson despite opposition from the attorney general’s office — even through the start of a new legislative session.

“I don’t intend to relent, at all,” Leach said, “until truth and justice are secured for Mr. Roberson.”