Death row inmate Robert Roberson is once again the subject of last-minute maneuvering as his scheduled testimony Monday before a bipartisan group of Texas lawmakers is shrouded in uncertainty just hours before it begins.

The questions surrounding his appearance before lawmakers come days after the House Committee on Criminal Jurisprudence issued a subpoena last Wednesday for Roberson to testify about his case. It was an unprecedented gamble made 24 hours before he was put to death for the 2002 murder of his 2-year-old daughter Nikki Curtis by a “shaken baby” — a crime he said and its defenders, did not take place. On Thursday evening, after a series of court battles and mounting appeals, the Texas Supreme Court granted a temporary stay of execution.

For Roberson, it was a godsend, just as other doors to saving his life were closing: his team had lost several appeals in Texas courts, the state Board of Pardons and Paroles had refused to recommend pardon and the United States Supreme Court had also refused to intervene.

Roberson is scheduled to address lawmakers Monday to examine the legality of his case — and whether it requires changes to a “junk science” law, which those on his side say should benefit Roberson.

But as of Sunday evening, it was unclear whether Roberson would appear at the hearing, his attorney, Gretchen Sween, told CNN, because the Texas Attorney General’s Office and the Texas Department of Criminal Justice have not until has now failed to reach an agreement with the committee. on the logistics of Roberson’s testimony.

The committee’s subpoena requires Roberson to testify in person, according to Sween, and lawmakers have said they fully expect the inmate to appear at the Capitol.

Sween wants Roberson to testify in person so lawmakers and the public can fully understand how his autism affects his interactions with others, which his advocates say was one of the contributing factors to his conviction.

But Texas prison officials will only allow Roberson to testify virtually, the attorney general’s office said Friday evening in a letter to committee Chairman Joe Moody, citing Department of Criminal Justice policies, the interest of public safety and the well-being of Roberson.

“Our hands are tied. The AG represents the TDCJ and takes the lead, while simultaneously attacking the underlying subpoena in the Texas Supreme Court. We expected that the subpoena would be honored consistent with Texas law and the intent of the Committee. But there was some sleight of hand here,” Sween said in a statement to CNN.

Texas prison officials did not say whether Roberson would travel to Austin for the hearing or testify virtually, saying they were working with the attorney general’s office.

The attorney general’s office has not responded to multiple requests for comment since the subpoena against Roberson was issued.

The hearing remains public and is expected to include other witnesses.

Texas law requires a judge to set a new execution date at least 90 days in the future, and Sween previously told CNN that a new execution could be scheduled no earlier than next year.

It remains to be seen how this will play out. Here’s what we know:

The case

Roberson was convicted of capital murder in a case that hinged on allegations that his daughter died of shaken baby syndrome — a misdiagnosis, his lawyers said, and one that they say has since been discredited . Pediatricians specializing in child abuse and medical organizations like the American Academy of Pediatrics stand firm on the legitimacy of the diagnosis.

But Roberson, his attorneys and advocates point to various other possible causes of Nikki’s death, citing their own medical experts: She suffered from double pneumonia that had progressed to sepsis, they say, and she was prescribed two medications now considered inappropriate for treatment. children who would have further hampered his ability to breathe. Additionally, the night before Roberson took her to the emergency room in Palestine, Texas, she had fallen out of a bed and was particularly vulnerable given her illness, according to Roberson’s attorneys. They invoke all these factors to explain his condition.

Roberson brought Nikki to the hospital on the morning of January 31, 2002. He told investigators that he woke up during the night and found that she had fallen out of bed, with blood on her lips and a bruise. under the chin, according to the criminal complaint. He kept her up for two hours to make sure she was OK, he said, but when he woke up that morning, she was unresponsive.

Doctors treating Nikki “assumed” abuse based on her symptoms and common thoughts at the time of her death, without exploring her recent medical history, the inmate’s lawyers say. And they say his behavior in the emergency room – considered indifferent by doctors, nurses and police, who believed it a sign of his guilt – was a manifestation of an autism spectrum disorder, which was not diagnosed until in 2018.

Indeed, police never explored any explanation for Nikki’s death other than shaken baby syndrome, according to Brian Wharton, the former senior detective with the Palestinian police. Advice from medical experts, coupled with Roberson’s behavior, led authorities to focus on Roberson as a suspect “to the exclusion of all other possibilities,” he told CNN.

The diagnosis

Roberson’s lawyers do not dispute that babies can and do die after being shaken. But they argue that more benign explanations, including illness, can mimic the symptoms of shaken baby syndrome, and that these alternative explanations should be ruled out before a medical expert testifies with certainty that the cause of death was abuse.

Shaken baby syndrome is accepted as a valid diagnosis by the American Academy of Pediatrics and supported by pediatricians specializing in child abuse who spoke to CNN. Today, it is more commonly called a type of “abusive head injury,” a broader term that doctors began using around 2009 to indicate that it can be caused by actions other than shaking, such as a impact on a child’s head.

Abusive head trauma typically occurs when a frustrated parent or caregiver violently shakes a child and/or causes a blunt impact injury, according to the U.S. Centers for Disease Control and Prevention and others. It is the leading cause of abuse-related deaths in children under 5, according to the CDC.

Criminal defense attorneys have also oversimplified how doctors diagnose abusive head injuries, pediatricians who specialize in child abuse say, noting that many factors are considered to determine it.

Yet courts across the country have reconsidered the role shaken baby syndrome plays in convictions based on it: since 1992, courts in at least 17 states and the U.S. military have exonerated 32 people convicted in shaken baby syndrome cases, according to the National Registry of Exonerations.

Those who question the diagnosis point to research they say undermines its reliability. But in the context of the law, they also worry that the diagnosis appears to encompass multiple elements of a crime, including the suspect, his or her state of mind and the manner in which the crime was committed.

“It’s the whole case, and it’s Mr. Roberson’s case,” Keith Findley, professor emeritus at the University of Wisconsin Law School, told the Texas Committee on Criminal Jurisprudence. last week. “When you have a lawsuit, a conviction that is based entirely on medical and scientific opinion, and it turns out that the medical science is, at best, deeply contested, you have a recipe for real problems.”

Pediatricians responsible for child abuse, however, fiercely defend this diagnosis.

“I don’t know what to say about the legal controversy,” Dr. Antoinette Laskey, chair of the Council on Child Abuse and Neglect of the American Academy of Pediatrics, told CNN. “It’s real, it affects children, it affects families.”

The testimony

Roberson’s possible testimony Monday is expected to take place before the House Committee on Criminal Jurisprudence, which includes state lawmakers who championed the inmate’s case. Their subpoena asks Roberson to “provide all testimony and information regarding the committee’s investigation.”

Last Wednesday, the same committee held a hearing on Roberson’s case and whether he should have benefited from a Texas law commonly known as the “junk science ordinance.” The law, officially known as Section 11.073, dates from 2013 and was intended to open up the possibility for someone to challenge their conviction if there is new scientific evidence that was not available at the time of their trial.

Roberson’s defenders say he should have benefited from this law. The Texas Court of Criminal Appeals previously issued a stay of execution in the Roberson case in 2016, sending a § 11.073 complaint (among others) back to the trial court. The lower court ultimately ruled against Roberson, finding that he had failed to demonstrate the existence of new scientific evidence relevant to his case, and the appeals court subsequently accepted those findings.

“I believe that Section 11.073 simply did not work as it should have in the Robert Roberson case,” Findley said last Wednesday – a sentiment echoed by House committee members, who reported that last week’s hearing was as much about Roberson as finding a way to fix a law they said hadn’t worked as intended.

“Everyone on this committee was surprised by how it was applied in this particular case,” Moody, the committee chairman, said of Section 11.073. “Frankly, we looked into this matter in detail, hoping that this law would provide relief, but that did not happen. »

“When the legislature passes a law and finds that it is not working as intended, it is our job to step in and fix that law.”

CNN’s Ashley Killough and Nicole Chavez contributed to this report.

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