Darby and Committee Walk a Tightrope Between Separation of Powers and a Death Row Inmate

AUSTIN, TX — In 2002, Robert Roberson rushed his 22-month-old daughter, Nikki, to a hospital in Palestine, Texas. According to court records, Nikki had been vomiting, coughing, running high fevers, and suffering from persistent diarrhea for about a week. Roberson had taken her to the doctor multiple times that month, but this time, her condition seemed urgent. She was having trouble breathing and turning blue.

Hospital staff testified that Roberson's behavior seemed off. He appeared emotionless, which they found bizarre. After being convicted of capital murder of his daughter in an Anderson County courtroom, Roberson was later diagnosed with autism while on death row.

Roberson's conviction was based on the now-debunked diagnosis of "shaken baby syndrome."

In 2013, the Texas Legislature passed a law allowing criminal appeals based on debunked science, but by then, Roberson had already spent a decade on death row. Despite this law, it was never accepted as grounds to appeal Roberson's conviction, and he was scheduled to be executed last Thursday.

While Gov. Greg Abbott remained silent, the Texas House Committee on Criminal Jurisprudence raised concerns that their legislation wasn’t being properly applied in this case. The committee persuaded the Texas Supreme Court to delay Roberson’s execution after issuing a subpoena for his testimony.

State Rep. Drew Darby (R-San Angelo), the committee's most senior member, voted with the bipartisan group to halt the execution until their concerns were addressed. The subpoena and political maneuvering granted Roberson about a 90-day reprieve as lawmakers from all branches of the Texas government argue in court about the separation of powers.

On Monday, the Texas Department of Criminal Justice was expected to deliver Roberson to the hearing for his testimony. He was not delivered. Instead, a long list of witnesses testified over 9 hours in support of overturning Roberson's death penalty conviction, including "Dr. Phil" McGraw and novelist John Grisham. A juror from the 2003 trial also testified, stating that their decision was based entirely on the shaken baby syndrome diagnosis, meaning the subsequent decisions denying Roberson relief at the courts of appeal may not have adhered to the 2013 junk science law.

“That was what our decision was based upon,” the juror said.

Former Court of Criminal Appeals Judge Elsa Alcala criticized the court's application of the state's 2013 junk science law. Darby appeared focused on procedural legal barriers and the lack of budget to enforce the law. The committee learned that more legislation would be needed to strengthen the law's application. The Court of Criminal Appeals is the highest state court for criminal cases.

Darby’s questioning also sought to clarify how the appeals process worked. The committee discovered that the prosecution's case evolved as more evidence debunking the original trial emerged.

“It becomes more about winning and less about seeking the truth,” Darby said.

After the hearing, Darby mentioned that the committee is considering traveling to Huntsville to gather Roberson’s personal testimony, though no plans are set.