DALLAS — It has never happened before. A Texas death row inmate is being subpoenaed to testify before state lawmakers in order to halt his execution.
"I am very grateful that right now while you and I are talking that Robert Roberson is still alive. Had we not issued that subpoena he most certainly would be dead right now," Rep. Brian Harrison, R-Midlothian, said.
Both Democrats and Republicans on the Texas House of Representatives Criminal Jurisprudence committee voted unanimously to issue the subpoena after hearing from experts about his case.
At issue is that Robert Roberson was convicted of killing his 2-year-old daughter in 2002 in what appeared to be shaken baby syndrome which scientists and doctors have now dispelled as junk science. They say the child most likely died of natural causes.
"No jury has ever heard the mountains of evidence that could prove his innocence. Ever." said Rep. Harrison.
Hours before his scheduled execution Thursday night, The Texas Supreme Court also agreed to pause the execution, contradicting an order allowing the execution by the Court of Criminal Appeals. So now you have two Texas high courts at odds.
"The court of criminal appeals which normally handles criminal cases said last night that the execution could proceed, but then the Texas Supreme Court that handles civil cases said the execution should be halted," said Elsa Alcala, former Texas Court of Criminal Appeals Judge.
In an extraordinary move, Texas prison guards are now planning to move Roberson from death row to the state capitol to testify on Monday.
"That is highly unusual never have I heard of a committee issuing a subpoena and certainly no one on death row," said Defense Attorney Mike Howard.
After he testifies Monday, experts say most likely prosecutors will try to get a new execution date, while his attorney tries to save his life.
"The district attorney's office prosecuting this case will likely go back to the original court and ask for a new execution date that’s probably going to be 90 days plus out," said Howard.
In the meantime, Roberson’s lawyers could petition the trial judge or the Texas Court of Criminal Appeals to consider new evidence.
"You see them kind of pursuing two strategies one. This should be dismissed outright, and he is innocent and if you can’t do that then let us have a new trial," said Howard.
All of this could take months which some lawmakers say is needed to make sure a potentially innocent man is not executed.